Laws and Procedures

Entering a Residence

At the time of this writing, a few days have passed since the Sentinel (OK) police chief and several deputies from the Sheriff’s Office went to a residence in response to a bomb threat at a local day care.  It was believed that the threat originated from the residence in question.  The chief and the deputies made entry into and began clearing the house.  A resident of the house opened fire striking the chief four times.  The chief survived due to the fact that he was wearing a ballistic vest.  It should be noted that the entry was made in the very early morning hours.

The Oklahoma State Bureau of Investigation has announced that charges are not being brought against the resident who fired the shots.

I have read several articles concerning this incident, and there is one glaring omission in each of them, and that is that no mention is made as to whether or not the peace officers involved had a valid search warrant to enter the residence.

There are four legal means in which to enter a residence.  As outlined in the 2-3-4 Rule, they are: consent, a search warrant, hot pursuit, and exigent circumstances.  It is pretty obvious that they didn’t have consent.  They also didn’t chase anyone into the house; so, there goes the hot pursuit exception.  That leaves only exigent circumstances or a search warrant as legal means of entry.

A simple explanation of exigent circumstance would be a situation in which immediate entry was required in a situation in which there was a immediate risk to life, such as an officer hearing calls for help or officers arriving to a call of domestic violence and hearing what appears to be a violent physical encounter taking place.  In such instances, the circumstances would make it extremely unreasonable for the officers involved to obtain a warrant prior to entry.  For instance, it would be completely unreasonable for peace officers to not enter the scene to stop a stabbing in progress.  Another example would be to prevent evidence destruction.  Readers are encouraged to seek out more information on exigent circumstances beyond this brief attempt at an explanation.

As to the incident at hand, I suppose one could make an argument for exigency; however, I would need much more information than is provided in the various articles.  Does a reported bomb threat for a daycare that was not currently open an occupied constitute exigency?  Was there some information that led the officers on scene to believe that they must enter immediately to save lives or prevent the destruction of evidence?

Again, the information provided in the articles is lacking, and second guessing officers on the scene when not having all of the information they had is not a practice in which I readily engage.  After all, they may have had a warrant with such just not being mentioned in the articles.  I simply saw this as an opportunity to discuss the legal requirements for entering a residence, and this article is by no means intended to imply wrong doing on the part of those involved.

The Other Part of the Fifth Amendment

I wrote a breathtakingly brilliant paper on this topic in graduate school for an administrative law class.  Okay, I wrote a paper on this topic…

I wish that I could find that paper as I would just upload it here, but that was prior to my walking towards the Mac light and at least three Windows based laptops have met the blue screen of death since that class, and I don’t have a current device that will read the 3.5” storage disks even if I could find the one containing said paper.  So, this will be much shorter than the 15 or so pages I wrote back then, and it certainly isn’t going to be anywhere near as scholarly.

Disclaimer: Some legal scholar is likely to read this and argue that it is the Fourteenth Amendment that bestows the rights I am going to discuss below. They can get their own blog. I prefer to use the text from the Fifth Amendment as it is more commonly known, and it gives me another opportunity to point out that the Miranda Warning is a complete fabrication of the court. Folks tend to forget that there are other parts of the Fifth Amendment, and yes, I know that Miranda includes portions of other amendments.  I understand the 14th Amendment and the theory of incorporation on the states.

And with that:

A long time ago in a nation seemingly far away, a document was written and ratified by a citizenry establishing a social contract and a system of government.  As part of the ratification process, the citizens insisted that certain additions be made to said document, and those additions became the Bill of Rights.

And then lawyers happened…

The Fifth Amendment contains more than the protections against self-incrimination and double jeopardy and other facets of criminal law that are most closely associated with it. Pay attention to the bolded portions below:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

To shorten this up considerably, the lawyers have successfully established in court that public employees have property and liberty interest in their jobs and that in order to be terminated, or lose pay, or be demoted, etc., they must be afforded due process. The employee has a right to a formal hearing and a chance to answer the accusations against them.

Even in specific instances in which an employee does not have a property interest, such as a probationary employee, a liberty interest still exists. As the saying goes, “You can fire a probationary (or at will) employee for no reason. You just fire them for a bad reason.” Employees with no property interest can’t be terminated/demoted/etc. because they choose to go to or not to go to a particular place of worship (religious freedom) or for their diddling preferences (sexual orientation) or any such similar things. Also, if an employee is accused of dishonesty or other things that would sully their “good name” and likely prevent their ability to gain other employment, they must be given an opportunity to “clear their name”.

So, when you see a news story concerning some allegation against a public employee, and the story contains a passage such as “suspended with pay” that does not mean that is the end of things. It means it is the beginning. As the media and the public often have the attention span of a gnat (I presume gnats have short attention spans. I don’t actually know that this is the case, and it may very well be insulting to gnats to make such a comparison. Gnats likely have a longer attention span than the media and public.) and the follow up story, if there is one, comes well down the road and is buried closer to the back page of the story than to the front.

Those that read such stories and make asinine comments such as “paid leave will teach them” or the like truly are idiots in the purest Greek sense of the word. Bless you hearts.

For those that would like a more technical explanation on liberty interest, click here.

I also suggest web searches on the Garrity Warning. Garrity is a tool that can be used in administrative investigations to compel an employee to make a statement; however, any evidence resulting from the use of Garrity may not be used in a criminal prosecution unless it is independently obtained.

 

 

 

 

 

 

Legal Requirements for a Road Check in Georgia

I am not looking to get into a debate concerning road checks, roadblocks, check points, or whatever you want to call them.  That is not the purpose of this posting.  The purpose of the post is simply to provide the information as it was requested.

To download and read an article from the  Prosecuting Attorney’s Council of Georgia on the topic: click here.  The article goes over the history of the Georgia court’s rulings in this area as well as two recent case that expanded upon the requirements.  I’m not going to rehash all of it since it is readily available.

The short version is that here are the seven requirements handed down by the Georgia courts to consider a roadblock legal are:

1.  The roadblock was implemented pursuant to a checkpoint program that has, when viewed at the programmatic level, an appropriate primary purpose other than general crime control;

2.  The decision to implement the specific roadblock in question was made by a supervisor in advance, and not by an officer in the field;

3.  All vehicles that passed through the roadblock were stopped, rather than random vehicle stops;

4.  The delay to motorists was minimal;

5.  The roadblock was well-identified as a police checkpoint;

6.   The screening officers staffing the roadblock possessed sufficient training and experience to qualify them to make an initial determination as to which motorists should be subjected to field sobriety testing; and

7.  Under the totality of the circumstances, the stop of the defendant was reasonable under the Fourth Amendment.

Again, I am not looking to get into a debate concerning roadblocks.

50 Years of the McFadden Stop

On The Job

On October 31, 1963, Detective Martin McFadden, age 62 at the time of the incident, took action that would lead to one of the landmark cases in criminal procedure: Terry v. Ohio, 392 U.S. 1 (1968). At the time of the incident, Detective McFadden was a 39 year veteran of the Cleveland Police Department. His career ultimately would span 45 years with 41 of those years as a Detective, and he was noted for his ability to capture thieves and pickpockets especially “Louie the Dip” Finkelstein.

On the day in question, Detective McFadden would spot two individuals (later joined by a third) in front of a store “casing a job, a stick-up”. He had watched the individuals repeatedly walking to a store window, looking inside, and then walking away and conferring. He eventually confronted the individuals and ultimately arrested two of them on weapon’s charges after “frisking” them and finding their pistols.

The individuals were convicted and the case ultimately wound up before the Supreme Court where it was upheld. In short, the Court ruled that the Fourth Amendment reasonableness standard is not violated when a peace officer has a reasonable articulable suspicion (RAS) to conduct an investigatory stop. Two important notes from the ruling was that, first, the Court stated that mere “good faith” of the peace officer is not enough to justify such a stop.  Second, The Court also drew (and continues to draw) a distinction between that of a person being armed and that of a person being “armed and presently dangerous”. In other cases, the Court has ruled that there is not a firearms exception to the Fourth Amendment and thus their presence alone is no different that a person being in possession of a wallet (an actual example from a Supreme Court ruling).

Since the ruling in this case was handed down, investigatory stops have often been termed as “Terry Stops”. I take umbrage with this. Terry was one of the bad guys. Detective McFadden was the one that put forth some excellent police work; so, we should be calling these “McFadden Stops”, but alas, cops are like offensive lineman in that we only get close-up shots and our number called when forget the snap count or get caught holding.

The concept of reasonable articulable suspicion and the facts of the case are more detailed than what I have condensed here. The purpose of this article is to pay respects to Detective McFadden on the 50th anniversary of the incident.

Special thanks go out to retired Commander Bob Cermack of the Cleveland Police Department and the Cleveland Police Museum for providing pictures of Detective McFadden as well as other documents.

2004012021Marty at work
Detective McFadden at work.

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Detective McFadden at his retirement party.

Obituary 1981
Detective McFadden’s obituary.

Miranda and the Public Safety Exception

As I wrote previously, the Miranda warning is a fiction created by the Supreme Court of the United States (SCOTUS). Nowhere in the Constitution will you find anything even close to a requirement to advise criminal suspects of their rights.

Miranda is grossly misunderstood. Movies and television give the impression that Miranda must be read immediately upon arrest or the arrest is invalid. This is far from the case. Miranda is two pronged. The first prong is that a person must be in custody. The second prong is that a person must be being asked investigative questions. A person not in custody can be freely questioned without having been read the warning as long as the person consents to the questioning.

Let us examine the following scenario:

A peace officer on patrol spots a bandit snatching a purse from a lady. The peace officer chases down the bandit, captures him, and then hauls him to jail. The peace officer never asks the suspect any questions about the crime and the Miranda warning is never read.

Good arrest? Bad arrest? Will the case be tanked due to the lack of the warning?

The answer is good arrest with no Miranda issues.

Now, if the peace officer, after having captured the suspect, had chosen to ask the suspect questions about the crime, the warning would have been required. Failure to do read the warning would have resulted in any evidence obtained as a result of the questioning being thrown out of court. It is important to note that the initial arrest would still be a good arrest.

Since we have gotten all of the above out of the way, we can move on to the point of this piece which is the public safety exception. This exception is triggered only when there is immediate danger. It originated in the case of New York v. Quarles, 467 U.S. 649 (1984), in which officers responding to a reported rape approached a suspect in a grocery store and captured him after a short chase. During a frisk of the suspect, an empty holster was discovered, and upon being asked where the gun was, the suspect gave up the location. He was later Mirandized and formally questioned.

At trial, the court tossed the disclosure of the firearm’s location as well as all resulting questioning. The ruling was appealed and initially upheld, but the SCOTUS reversed the rulings of the lower courts and held that the initial questions were prompted by an immediate concern for public safety.

Note the use of the word “immediate”. The Court didn’t establish a blanket exception here. It only established an exception when there is an immediate public safety concern. Once that initial immediate public safety concern is alleviated the exception no longer applies. In the scenario of the Quarles case, once the firearm was located the officers read the warning prior to formally questioning the suspect.

So, suppose a bombing suspect was hiding in a boat in someone’s back yard, and a swarm of cops descended upon the scene to capture him. Whilst doing so, if they asked about bombs and weapons in an attempt to safely secure the suspect and the scene, then such questions would be good to go. However, when that suspect, should he survive his wounds, is formally questioned about his involvement in the bombing and ties to terror organizations, Miranda will most definitely apply.

None of this would matter in the first place if SCOTUS had not created the Miranda warning in the first place.

Firearms Registration in Georgia

Perhaps I should have titled this piece “There Is No Firearms Registration in Georgia” because that is the case.  Please understand that this piece is not an argument in favor of or a call for such a system.  It is simply informational.

Frequently, citizens will come by the Sheriff’s Office because they have lawfully received a firearm and want to “register” it. The fact of the matter is that there is no method or mechanism for firearms registration in Georgia.  There is no means to register a particular firearm to a particular person.

In a previous piece about the so-called “gun show loophole“, I discussed the fact that firearms sales by licensed dealers are governed by the same rules whether at a gun show or their normal place of business and that such sales by private citizens are governed by the same applicable laws governing private sales at any other time.  When a firearm passes through the hands of a licensed dealer and is transferred to another owner a form 4473 is completed.  This creates a record of the transaction but it does not “register” the firearm.  In Georgia, private parties can sell a firearms to other private parties without the transaction having to go through a federally licensed firearms dealer.  The laws concerning private sales vary from state to state.

When a gun is traced by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF); the agency is simply going through its records and checking for the form 4473.  This check will only be able to track the instances in which the firearm in question passed through the inventory of a licensed dealer.  It will not track legal transactions made by private parties in states where private parties can sell firearms without having to go through a licensed dealer.  Therefore, if a Georgia resident buys a firearm from a licensed dealer and then sells it in a private party transaction, an ATF trace would show the firearm having been transferred to the original purchaser alone.

While it is understandable that private citizens might confused on this subject, it is troublesome that apparently there are law enforcement agencies in Georgia that get this wrong.  I recently learned of a instance in Georgia in which an agency is refusing to return a recovered stolen firearm to its rightful owner. The agency returned the other recovered items to the victim, but they are withholding the firearm.  The reason they are giving is that the ATF trace shows the firearm as being “registered” to another individual.  I used the plural in the first sentence in this paragraph because I know of at least one other agency using a similar approach.

I wonder if they made the victim show proof of registration for the other items?  Why is it that some items that the victim possessed legally were stolen, recovered, and returned but an item that victim owned legally was stolen, recovered, but withheld?  This is a fundamentally illogical approach.

Senate Bill 308 and Traffic Direction

A recent report was aired by WMAZ out of Macon, Georgia, in which Bibb County School District Police Chief DeCoursey was purported as citing a 2010 revision to Georgia’s weapon carry laws as removing his officers’ authority to direct traffic on streets adjacent to campus properties. It should be noted that the original story at the link has been updated by WMAZ with comments from State Senator Mitch Seabaugh, the primary sponsor of the bill. The video at the link still airs in its original format.

I contacted State Representative Terry England concerning the story. Representative England was in the General Assembly in 2010, and he voted in favor of SB308. He told me that he did not believe that anything in the bill changed the jurisdiction of the campus police.

After viewing the report, I contacted Chief DeCoursey, and asked him to cite the provision in Senate Bill 308 that prohibited officers from directing traffic in front of schools. He cited section 1.4 of the bill and its change in the definition of the term “school safety zone”. He told me that the department’s legal counsel interpreted the definition of “school safety zone” as the jurisdictional boundary for his agency and that the change brought about by the code section revision thus in turn limited his agency’s jurisdiction to the real property boundaries actual campus properties.

I want to make it clear that the conversation was respectful and courteous on both sides and that Chief DeCoursey did not at any time express any opposition to citizens legally carrying firearms. With that being said, I disagree with the interpretation of the law being put forth by the Chief. The cited provision of Senate Bill 308 altered the definition of “school safety zone” as it applied to code section 16-11-1271 O.C.G.A. The code section in question in both its current and former versions pertains only to the carry of weapons. The very words in the code section are “As used in this code section” just prior to defining the term “school safety zone”; therefore, the subsequent definition applies only to the particular code section in question. The code section, past or present, does not address the jurisdictional boundaries of school system police. School system police are established under 20-8-5 O.C.G.A.

I invite the readers of this article to research case law and the relevant code sections and show otherwise.

Private Property Parking Issues

The entertainment industry paints a picture of constant excitement and a never ending supply of dramatic cases with intricate legal issues.  In reality, the career of a peace officer is filled with mundane tasks making up the general routine, but sometimes a vital legal issue comes along and prompts much discussion.  Unfortunately, this isn’t one of those instances as the subject matter for this article is that of parking on private property.

Here is the scenario: a citizen finds a vehicle parked on their property that has not been authorized to do so.  The citizen suppresses the urge to slash the tires of said vehicle or otherwise damage it as the citizen realizes that this would lead to their own legal troubles.  The citizen then calls for a peace officer to come to the scene.  The citizen has expectations that the peace officer will arrive on scene and justice will prevail.  Unfortunately, Georgia law is rather mute on the issue in that it does not grant peace officers an effective remedy for this citizen’s predicament.  There is a code section that deals with parking spaces provided by merchants (see 40-6-252 O.C.G.A.), but remember, our scenario described a vehicle parked on private residential property.  I can find no code section that authorizes a peace officer to issue a citation or remove the vehicle in such an instance.

To muddy the waters even more, in order for a wrecker company to remove a vehicle from private property, the wrecker company must jump through bureaucratic hoops and register with the Public Service Commission (PSC).  A wrecker company that has not done so may be fined by the PSC.  I know of one company that did indeed receive such a fine in the amount of $2500.00.  Please understand that the above refers to non-consensual tows and not the actual owner of a vehicle wanting to have their own vehicle towed.  You can read more about the non-consensual towing requirements on the PSC webpage as well as here.  Towing companies removing vehicles from private property as part of a law enforcement function such as the recovery of a stolen vehicle or a vehicle being otherwise taken into evidence do not have to be registered with the PSC.

Please note that one of the requirements is that a private property must have a contract in place with a towing company prior to their removing a vehicle.  Furthermore, a private property owner who has a vehicle removed incurs certain reporting requirements as well.  As we have already discussed, a peace officer has no authority to remove a vehicle from private property simply because the owner does not want it there (exception for places of business as cited above).  It is up to the property owner to have a vehicle removed if they so desire.

By now I am sure that some readers are wondering how the criminal trespass code section (16-7-21 O.C.G.A.) applies to such situations.  This code section applies when a person enters onto another’s property for an unlawful purpose or they enter or remain on the land or premises of another after having been served notice by the property owner or an authorized agent not to do so.  The driver/occupants of the vehicle could be then be charged with criminal trespass, but the vehicle would still be on your property.

Finally, it would be a violation of Georgia Crime Information Center (GCIC) regulations for an agency to use the system to identify such a vehicle’s owner and then provide that information to the property owner. It would be possible for the property owner to go through the Tax Commissioner’s office to obtain such information; however, providing that information would be a decision made by the respective Tax Commissioner.

I am prepared to stand corrected.  If any reader of this finds information to the contrary they are encouraged to bring it to my attention.

Gun Show Loophole?

I do not intend for this piece to be a pathway into a debate on gun control or any of the applicable laws pertaining firearms sales. I am simply attempting to clarify the actual legal framework involved in a firearms sale. This piece is in response to a political commercial currently running on several of the cable news channels.

The commercial shows snippets of a terrorist asserting that people can simply walk into a gun show and buy fully automatic weapons without any sort of background check. The commercial is sponsored by a group of mayors, and it urges people to contact their congressmen concerning closing the so called gun show loophole.

The simple truth is that those claims are absolutely and totally false. Licensed firearms dealers must follow the exact same rules for selling a firearm at a gun show as they must follow when selling a firearm from their place of business. This is required by federal law, and such sales are regulated by the Bureau of Alcohol, Tobacco, Firearms, and Explosives more commonly known as the ATF. Additionally, state laws regulating the sale of firearms must be followed at a gun show just as they are at a retail firearms shop.

Furthermore, fully automatic and select-fire firearms are Class III items, and as such, they are even more stringently regulated by the federal government and other applicable state laws. In order to purchase a Class III item, a person must be approved by the ATF prior to buying the item, and each item purchased requires specific approval. Part of that approval process includes either the signature of the chief law enforcement officer of the locality where the purchaser resides or the establishment of a legal trust. The process is very time consuming, and each item also incurs an additional $200.00 federal tax. The purchase process of a Class III item is measured in months and not minutes.  Private parties may not sell Class III items directly to another party. The transaction must go through a dealer approved by the federal government to handle Class III items.

The notion that someone can walk into a gun show and simply buy a fully automatic weapon is ludicrous to the point that the person espousing such is either ignorant on the law and is merely parroting remarks made by others, or the person is knowingly and intentionally perpetuating a lie.

Sales between private parties at gun shows are governed by the same state laws and applicable federal laws that apply to a private party transaction elsewhere in the respective state.

The gun show loophole does not exist.

Again, this piece was not intended as a pathway to a debate on gun control. Its intent is to provide accurate information.  This piece is not an argument in favor of or against control measures.