No kidding? 6th Circuit Fourth Amendment case

[ToddG]

This is the headline I got in an email:

Sixth Circuit Holds that Constitution Was Violated When Police Accompanied A Suspect to a Hospital so that Medical Staff Would Temporarily Paralyze the Subject in Order to Perform a Warrantless, Nonconsensual Cavity Search

LINK (http://www.fedagent.com/columns/case-law-updates/978-sixth-circuit-holds-that-constitution-was-violated-when-police-accompanied-a-suspect-to-a-hospital-so-that-medical-staff-would-temporarily-paralyze-the-subject-in-order-to-perform-a-warrantless-nonconsensual-cavity-search)

I consider myself a very pro-LE guy, but... seriously? You thought convincing a doctor to search a suspect's rectum under anesthesia against his will without a warrant would be OK? Somebody skipped the day they taught LAW at the law enforcement academy.

[jlw]

Wow.

How could anybody think that was okay?

[TCinVA]

I can't say that I'm surprised. The number of people out there rolling on patrol who don't really have a good grasp on search and seizure is pretty sizeable. Of course, even among that number I'd wager that the percentage of them who think they can get a doc to forcibly anesthetize somebody so they could conduct a warrantless search has to be pretty small.

...but if you give enough monkeys enough typewriters...

And you'd think a doc would have better sense than to go along with that.

[secondstoryguy]

It could have been a big bag of dope which if ruptured could put the suspect(patient) at risk.

[tremiles]

Beyond the 4th Amendment violation, how is this not aggravated sexual battery?

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[ToddG]

It could have been a big bag of dope which if ruptured could put the suspect(patient) at risk.

The government isn't allowed to force you to accept medical treatment even if refusing it is guaranteed to result in your death.

[jlw]

I have time to now to expound a little more:

The SCOTUS has ruled that strip searches are legal (http://www.supremecourt.gov/opinions/11pdf/10-945.pdf) for those inmates being put into the general population of a jail. The jail must have a policy that outlines the procedures, etc. In our jail, we have a written policy for this. Inmates going into the housing areas are strip searched. Not only does this protect against contraband getting into the housing areas, we have discovered communicable medical issues that we were able to isolate rather than introduce into the housed population.

People who are arrested and that are able to make bond are not sent to housing; therefore, they aren't strip searched. We give ample time for people to try and arrange bond. As one of our personnel put it, "We do all we can to not have to see butts and nuts."

According to the article, the jail in question did not have a policy on strip searches.

---

Now, supposing a strip search had been legally conducted leading to the discovery of a string coming from a suspect's rectum, unless an exigent circumstance is in play, get a warrant. If an exigent circumstance were in play, such as signs of an emergency medical situation, any evidence discovered pursuant to the exigency would be good to go.

Here, according to the article, albeit there was the potential for such a situation there wasn't an emergency medical situation in play.

So, get a warrant prior to the conducting of the procedure.

[John Hearne]

Not saying it's right, but until this year, the SCOTUS had not clearly laid out the limits of exigent circumstances that allowed officers to avoid a warrant.

[joshs]

Beyond the 4th Amendment violation, how is this not aggravated sexual battery?

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It is some form of battery. The doctor seemed to be under the mistaken impression that because he thought the suspect's life was at risk, he could perform the procedure against the suspect's will.




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[jlw]

Not saying it's right, but until this year, the SCOTUS had not clearly laid out the limits of exigent circumstances that allowed officers to avoid a warrant.

If a badge toter needs SCOTUS to tell him/her whether or not it is okay to administer paralytic drugs in order to play a game "Find the Other End of This String" without a warrant...

[Coyotesfan97]

The government isn't allowed to force you to accept medical treatment even if refusing it is guaranteed to result in your death.

Paramedics transport people against their will to the ER for medical treatment all the time on Doctor's orders. They have to talk to the ER doctor to describe the injury/medical symptoms. If the Doctor tells them to bring the patient in he gets transported.

That being said I can't imagine why they didn't get a warrant for this. The ERs around here wouldn't touch him without a warrant and some Doctors are hesitant even with one.


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[John Hearne]

If a badge toter needs SCOTUS to tell him/her whether or not it is okay to administer paralytic drugs in order to play a game "Find the Other End of This String" without a warrant...

Up until this year, involuntary blood draws without a warrant were deemed OK in about half of the states.

[jlw]

Up until this year, involuntary blood draws without a warrant were deemed OK in about half of the states.

I can't believe folks needed SCOTUS to tell them that either. Sticking a needle in someone's arm and drawing out blood is clearly a search.

[punkey71]

Just to clarify...there are VERY specific instances when a paramedic can transport someone against there will to the hospital. Implied consent allows a patient with a altered mental status due to injury, illness or intoxication to be taken to the ER as it is assumed they would want medical care. Suicidal threats also are covered.

However, a competent adult who has not made threats to themselves or others is free to refuse treatment, transport or both. They can simply tell you to get lost or allow an assessment and make their own decision. Most paramedics will advise a trip to the ER for liability reasons but a patient can refuse. The patient is asked to sign a release but they can't even be forced to do that.

"we are taking you to the hospital, ok?" is a lot like "I'm gonna take a look in your trunk if that's ok". We assume we are being told when we are actually being asked.

While i'm not necessarily disagreeing with you, it's not like someone with chest pain who wants to stay home or go to their doctors office can be forcefully taken to an ER just because it might kill them. If the government was allowed to stop people from killing themselves there would be someone with a .gov email slapping Big Mac's out of fat ladies sausage fingers at McDonald's.

We are not quite there....yet.

:-)

Harold


Paramedics transport people against their will to the ER for medical treatment all the time on Doctor's orders. They have to talk to the ER doctor to describe the injury/medical symptoms. If the Doctor tells them to bring the patient in he gets transported.

That being said I can't imagine why they didn't get a warrant for this. The ERs around here wouldn't touch him without a warrant and some Doctors are hesitant even with one.


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[Dagga Boy]

I can't believe folks needed SCOTUS to tell them that either. Sticking a needle in someone's arm and drawing out blood is clearly a search.

Did it a TON with DUI's for a variety of reasons. The key is they have to be legally under arrest first. We had no issues and that was with the 9th circuit.....must have been doing something right.

[SecondsCount]

There are a ton of good cops and a couple that cost us tax payers a whole lotta money. (http://articles.latimes.com/2013/feb/08/local/la-me-torrance-shooting-20130209)

[jlw]

Did it a TON with DUI's for a variety of reasons. The key is they have to be legally under arrest first. We had no issues and that was with the 9th circuit.....must have been doing something right.

Never said folks didn't do it. I just don't understand any court upholding it. SCOTUS must not have understood either because they ruled against warrantless blood draws (http://www.supremecourt.gov/opinions/12pdf/11-1425_cb8e.pdf). In the holding, they specifically rebuffed a case out of the 9th Circuit upholding the practice.

There is a push in GA to do search warrants for blood on DUI refusals. I never had a problem making less safe cases that held up in court. In the case of a vehicular homicide or serious injury crash I could see it,

[TGS]

Paramedics transport people against their will to the ER for medical treatment all the time on Doctor's orders. They have to talk to the ER doctor to describe the injury/medical symptoms. If the Doctor tells them to bring the patient in he gets transported.

That being said I can't imagine why they didn't get a warrant for this. The ERs around here wouldn't touch him without a warrant and some Doctors are hesitant even with one.


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As Harold wrote, there's only very specific circumstances on which we can treat/transport someone without explicit consent.

A doctor cannot just tell us to. I'm not aware of any EMS system where online medical command (a doctor on a phone) makes that decision, either....it's the call of the crew, and they better damn well specifically document why it was a treat/transport without a patient signature authorizing such.

There's a reason that almost everything you ever do in the medical realm is covered with having you sign eleventy-billion forms of consent. How this doctor failed to understand this super simple concept of consent is way beyond me, because even us trained monkeys get it.

[Dagga Boy]

Never said folks didn't do it. I just don't understand any court upholding it. SCOTUS must not have understood either because they ruled against warrantless blood draws (http://www.supremecourt.gov/opinions/12pdf/11-1425_cb8e.pdf). In the holding, they specifically rebuffed a case out of the 9th Circuit upholding the practice.

There is a push in GA to do search warrants for blood on DUI refusals. I never had a problem making less safe cases that held up in court. In the case of a vehicular homicide or serious injury crash I could see it,

We didn't do it based on exigency, California has an administrative per se that you essentially consent when you get a drivers license (or drive). We used went with blood as best evidence. The blood was evidence of the crime. Like I said, it was challenged a ton, but never succeeded in our area, but I think that is mainly because of the state laws that are in place. Missouri is obviously different as well as basing it on exigent circumstances.

[jlw]

We didn't do it based on exigency, California has an administrative per se that you essentially consent when you get a drivers license (or drive). We used went with blood as best evidence. The blood was evidence of the crime. Like I said, it was challenged a ton, but never succeeded in our area, but I think that is mainly because of the state laws that are in place. Missouri is obviously different as well as basing it on exigent circumstances.

GA has an implied consent law as well. Failure to provide a sample for the state test, provided all of the legal hoops are properly hopped through, results in a suspension of a driver's license for one year.

The Mizzou courts upheld the practice in part based on case law out of CA. SCOTUS specifically rebuffed the case out of CA in its holding.

In any event, the warrantless blood draws have now been definitively ruled unconstitutional by SCOTUS. It's a shame they had to waste their time with it as such a practice should have never made it past a single court of original jurisdiction.

[Dagga Boy]

I'll just respectfully disagree based on watching how it worked within the system over twenty years. Things change and its a victory for DUI and impaired drivers (as well as those not impaired to prove their innocence). I don't drink, and I'm not a cop anymore, so I'll add it to the list of things that have zero affect on me.....unless I get hit by someone who got off on a DUI due to this.

[Coyotesfan97]

As Harold wrote, there's only very specific circumstances on which we can treat/transport someone without explicit consent.

A doctor cannot just tell us to. I'm not aware of any EMS system where online medical command (a doctor on a phone) makes that decision, either....it's the call of the crew, and they better damn well specifically document why it was a treat/transport without a patient signature authorizing such.

There's a reason that almost everything you ever do in the medical realm is covered with having you sign eleventy-billion forms of consent. How this doctor failed to understand this super simple concept of consent is way beyond me, because even us trained monkeys get it.

I probably wasn't detailed/specific enough in my post but Harold covered it well. What I have seen is cases where the Paramedic it Captain calls the ER and tells them what they have and why they want to bring the patient in against his/her wishes. I'm not in that loop but from what I have seen the Doctor clears that. I've seen it in many cases where the Fire Captain tells the patient the Doctor is ordering them to transport. Whether that is their call or they're just throwing it off against the Doctor to the patient I'm out of that loop. Yes it usually involves drunks, druggies, or suicides.

I've also seen a lot of cases where people who should go to the hospital and they refuse medical treatment against the advice of the paramedic. Yep they sign the refusal form and walk. I've signed as a witness for the fire guys more times then I can count.

We've been drawing blood for DUIs before I was in field training 26 years ago. Arizona has admin per se/implied consent laws too. We write telephonic search warrants for refusals so the suspect loses their license for a year and we get the blood evidence too. If the suspect refuses to cooperate with the blood draw they are held down and the phlebotomist takes the draw. Then they are charged for not obeying a court order.


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[jlw]

I'll just respectfully disagree based on watching how it worked within the system over twenty years. Things change and its a victory for DUI and impaired drivers (as well as those not impaired to prove their innocence). I don't drink, and I'm not a cop anymore, so I'll add it to the list of things that have zero affect on me.....unless I get hit by someone who got off on a DUI due to this.


One of my earliest memories in life comes from when I was three years old and a drunk driver took out a car containing my grandparents and sister. That incident along with a few other alcohol fueled tragedies were primary motivators of my getting into police work. I've won awards for DUI enforcement. I'll 42 in November, and I have yet to knowingly take a drink of an alcoholic beverage.

That still doesn't change my opinion that forcibly drawing someone's blood without a warrant is a clear violation of the Fourth Amendment.

[Paul D]

I read that that same doctor was arrested on 9/3 for drug and marijuana possession. His impaired medical judgment makes sense now.

[Drang]

The government isn't allowed to force you to accept medical treatment even if refusing it is guaranteed to result in your death.

Until next week...

[ToddG]

Until next week...

Yeah, the last thing we're going to get out of Obamacare is too much medical care...

[Josh Runkle]

The doctor could operate under the state's authority, without the patient's consent as "involuntary consent" if the patient is under arrest. The doctor, however, must still act in the patient's best interest and not in the best interest of the state. (The same reason goes for state executions. The doctors try to hide their identities because while many, many doctors agree with state executions, they realize that participating in such is in violation of their oath and their medical license.)

[Chuck Whitlock]

We've been drawing blood for DUIs before I was in field training 26 years ago. Arizona has admin per se/implied consent laws too. We write telephonic search warrants for refusals so the suspect loses their license for a year and we get the blood evidence too. If the suspect refuses to cooperate with the blood draw they are held down and the phlebotomist takes the draw. Then they are charged for not obeying a court order.



That still doesn't change my opinion that forcibly drawing someone's blood without a warrant is a clear violation of the Fourth Amendment.[/SIZE]

WITH the warrant......no sweat.
I actually love it when they refuse the test. Penalty for refusal is same, and proving that is super easy.

[KeeFus]

WITH the warrant......no sweat.
I actually love it when they refuse the test. Penalty for refusal is same, and proving that is super easy.

We have a few guys that will get a search warrant for refusals on DWI's. I never have. The penalty is stiff for refusals so let them refuse. The DA's here like to have that number more than anything else so they like the blood draws.

As far as forced blood draws, I'm glad that SCOTUS ruled that search warrants are needed, which I thought everyone knew; Until one of our guys tazered a female who was willfully refusing to give a blood sample on a DWI. He's since been promoted...:rolleyes:

[BLR]

We have a few guys that will get a search warrant for refusals on DWI's. I never have. The penalty is stiff for refusals so let them refuse. The DA's here like to have that number more than anything else so they like the blood draws.

As far as forced blood draws, I'm glad that SCOTUS ruled that search warrants are needed, which I thought everyone knew; Until one of our guys tazered a female who was willfully refusing to give a blood sample on a DWI. He's since been promoted...:rolleyes:

He tazered her for refusing?

How did she not sue the snot out of the department?

[Dagga Boy]

Keep in mind, that the most anti-cop, liberal court in the country was good for my entire career with the admin per se/implied consent. Stuff changes. As long as the process for a telephonic warrant is easy, great. These things change over the years. As far as the process...it is necessary. Without "best evidence" (which is blood), DUI cases turn into a disturbing circus with the attorney's who specialize in defending them. It was the reason that I took a ton of time on how I wrote DUI cases. The "State Traffic Cops" who wrote a couple paragraph DUI case with no evidence (took the refusal) or used evidence that was easier to fight (breath and urine) got slain in court. I not only never lost a single DUI case (I would venture over a thousand), I have never even had to go to court because the cases were airtight. Many of us have seen that DUI's are the things that slaughter many very innocent victims in a horrific way.

The system is often the problem. The penalty for a refusal of blood evidence (or any test) was to have your license suspended.....which is funny because a majority of the people I arrested for DUI either were driving on a suspended license or never had one to begin with. Then you have those with priors. Their attorney's advice them not to consent to any test and hope a test is not taken as its the only way they can really fight the case is if there is no evidence...so they can put the cop on trial. Another huge issue for the public is that they have made more work over the years for L/E to do in DUI cases. This search warrant process just adds to it. I knew a lot of officers who stopped working DUI's because they didn't want to do all the paperwork. Many were simply lazy, others (especially the hard workers) looked at is as an efficiency thing. They could go out and arrest a couple of bad guys for other stuff rather than being tied up for hours on a single DUI arrest.

When the court speaks, L/E responds. Its the way of the world. In this case, I would still be taking bloods (by force if necessary), and filling out yet another form and waking a judge up at 3 AM.....wouldn't bother me at all, but I bet the local judges are not happy with SCOTUS on this one.

[BLR]

You're wadding fairly far into Machiavellian waters, there.

[Dagga Boy]

He tazered her for refusing?

How did she not sue the snot out of the department?

We had a couple of these as well. They weren't tazering them for refusing, they were getting tazered for how violent many fought the process...especially those who were "mean drunks". When the courts ruled against this, the process was stopped. Trust me, you can't actually get blood out of people hooked to a running taser.
We had a very solid procedure for getting blood from those who physically resisted the process. Most people would refuse, we marked the forms and stated in the report that they refused and then took the blood without a fight. Some people violently fought it. Also keep in mind, most of those we dealt with were not Suzy Soccer Mom, they were drunk criminals, and drunk enough to bring attention to themselves.

[Tamara]

Also keep in mind, most of those we dealt with were not Suzy Soccer Mom, they were drunk criminals, and drunk enough to bring attention to themselves.

I have to say that I'm not entirely comfortable with the "known dirtbag" exemption to the Fourth Amendment. It can get pretty subjective.

[KeeFus]

He tazered her for refusing?

How did she not sue the snot out of the department?

She refused to provide a breath sample, which pissed him off I guess. He then called EMS to do a blood draw. She refused that as well. When EMS arrived she refused the blood draw...tazer!!! Then the blood got drawn. (I'd let them have the blood too at that point).

The DA and defense attorney ate his lunch before it went to court. The actual DWI never saw the light of day in a court room. As far as a tort, I have no idea why the female didn't sue. I would have. And seriously, he got promoted a few months later.

[BLR]

We had a couple of these as well. They weren't tazering them for refusing, they were getting tazered for how violent many fought the process...especially those who were "mean drunks". When the courts ruled against this, the process was stopped. Trust me, you can't actually get blood out of people hooked to a running taser.
We had a very solid procedure for getting blood from those who physically resisted the process. Most people would refuse, we marked the forms and stated in the report that they refused and then took the blood without a fight. Some people violently fought it. Also keep in mind, most of those we dealt with were not Suzy Soccer Mom, they were drunk criminals, and drunk enough to bring attention to themselves.

I get it.

Though, I have to say, I doubt I'd sit there nicely while someone tried to stick a needle in my arm without me wanting it there.

Other side of that coin - I'm not likely to do the DUI thing anyway.

[BLR]

She refused to provide a breath sample, which pissed him off I guess. He then called EMS to do a blood draw. She refused that as well. When EMS arrived she refused the blood draw...tazer!!! Then the blood got drawn. (I'd let them have the blood too at that point).

The DA and defense attorney ate his lunch before it went to court. The actual DWI never saw the light of day in a court room. As far as a tort, I have no idea why the female didn't sue. I would have. And seriously, he got promoted a few months later.

I'm convinced a lot of stuff like this happens and gets swept away because the person it happens to has no grasp of reality anymore.

[Dagga Boy]

I wouldn't be good with Keefus's case either. Trust me, I am as harder on cops doing stupid crap in my self righteous world. Now, when you go into a room with a nurse (mostly younger females) and get attacked by some drunk lunatic...well, that is another case. I was never a big taser guy, but they have become the solution to every problem for many LEO's, especially the ones who can't fight.

Here is my deal on DUI's. Very few murder, rapes, personal robberies (vs. commercial) and felony assaults that I dealt with for almost two decades involved people who were minding their own business and not in stupid places with stupid people doing stupid things. Essentially, we didn't see a high percentage of pure victims. I was hell on cases involving pure victims. Putting predatory animals in cages is why I became a cop. People who rob nuns, brutally rape some business woman who happened to make a wrong turn while stopping for gas, murdering an elderly couple who were collecting cans to supplement their Social Security, and those who rape six year olds, are the people who got every bit of attention and work from me as I was able to legally put forth. In the case of DUI's, almost every time they "hit something" it is in fact a pure victim. Some of the most brutal deaths and horrific injuries I have ever seen came from DUI drivers who are often un-injured themselves. So, I take took them seriously, and I was very vested in the cases AND worked hard to build solid cases against them. Part of that process was evidence, evidence handling, how evidence was obtained and textbook documentation of the process. If it was not legal in how my place of work was doing it, the process would not have lasted long. I don't get how that is Machiavellian, but okay.

Edited to add: The other good thing for blood evidence is that it is a two way street as far as best evidence. The sample is large enough for multiple tests, and the suspects side can have it tested again. It is handled in a manner in which it is preserved properly and available to all parties. The testing is done in a manner that is free from outside influence. Essentially, if you are innocent it is the best way to prove it. We had cases where people got acquitted of DUI because blood evidence was taken.

[YVK]

In most states, if following conditions are met..
- patient is unable to give or withhold consent
- absent or unknown advanced directives
- two physicians agree that there is an immediate danger

..then those two physicians can sign the consent form under medical necessity and proceed.

People who are in custody of the state lose their autonomy. If patient is unconscious and custodian says do it, physician must do it unless it contradicts his professional opinion.

[ToddG]

Darryl -- I get what you're saying 100% about the danger of DUI and the character of those who subject the world to that danger. I'm on the fence regarding blood draws. Here in MD, getting a driver's license includes implied consent to a breathalyzer test and the penalty for refusing is losing your license for 120+ days. Many DUI defense attorneys recommend that their repeat clients refuse the test because that penalty is less than they are likely to get from a guilty verdict for DUI and especially for DWI.

But "we really need this evidence" cannot be a sole excuse for performing a medical procedure on a suspect against his will. That's what warrants are for. If the process to get such a warrant was inadequately complicated or delayed in a jurisdiction, that should be the thing that is changed. "It's too hard to get a warrant" is a pretty lousy reason to ignore the 4th.

In the instant case, however, we're talking about going well beyond a blood draw. We're talking about forcing someone to get anesthetized and then putting him through a cavity search. Don't think about it in terms of the scumbag you see walking around your daughter's school. Think about it in terms of your daughter. If a cop mistakenly suspects her of hiding drugs, how calm and accepting would you be if they drugged her up and poked around?

[Dagga Boy]

Darryl -- I get what you're saying 100% about the danger of DUI and the character of those who subject the world to that danger. I'm on the fence regarding blood draws. Here in MD, getting a driver's license includes implied consent to a breathalyzer test and the penalty for refusing is losing your license for 120+ days. Many DUI defense attorneys recommend that their repeat clients refuse the test because that penalty is less than they are likely to get from a guilty verdict for DUI and especially for DWI.

But "we really need this evidence" cannot be a sole excuse for performing a medical procedure on a suspect against his will. That's what warrants are for. If the process to get such a warrant was inadequately complicated or delayed in a jurisdiction, that should be the thing that is changed. "It's too hard to get a warrant" is a pretty lousy reason to ignore the 4th.

In the instant case, however, we're talking about going well beyond a blood draw. We're talking about forcing someone to get anesthetized and then putting him through a cavity search. Don't think about it in terms of the scumbag you see walking around your daughter's school. Think about it in terms of your daughter. If a cop mistakenly suspects her of hiding drugs, how calm and accepting would you be if they drugged her up and poked around?

On the forced blood, it was within the law...the law changed...L/E adapted...no big deal. L/E is highly adaptive. Keep in mind that we had to learn to take blood vs. other tests from somebody....want to guess who taught us about best evidence? Attorney's got DUI's off with technicalities, L/E reacts. Eventually, attorney's get DUI's off on technicalities, L/E reacts.....it is a simple cycle. At some point I imagine that somebody will get off because of the use of a telephonic warrant, and then it will change again. Life in the "justice" system.

Now, on the other issue. I would agree on the face that it is wrong, not the way I ever handled it, and it is cases like that tend to be the ones that change procedures that were not as egregious.

Personally, I never got too upset when some idiot ingested a bunch of dope they were hiding. The only reason you had to do something about it was to avoid the paperwork for an in-custody death. Take the idiot to the hospital and long form the case. For people hiding dope in there orifices...smuggling narcotics into a custody facility is a big charge over simple possession. Let em bring it in...you'll get it eventually.

[jlw]

On the forced blood, it was within the law...the law changed...L/E adapted...no big deal.



It was a violation of the 4th Amendment. That is a big deal just as if a law violated a person's 2nd Amendment or any other enumerated rights.

[ToddG]

Just because it was acceptable in a jurisdiction doesn't make it ok. Just change what you wrote a little bit and:

On slavery, it was within the law...the law changed...L/E adapted...no big deal.

A cop cannot force open the locked suitcase he finds in my trunk even after a K9 indicates there are drugs inside... until he gets a warrant. But he can force me to get strapped down on a gurney so someone can jam a needle into my vein? It's baffling to me that anyone, anywhere, thought that was ok.

[DBLAction454]

Im not looking to step on any toes here by saying this and believe me. I support the constituion with my whole heart and believe very much in the 4th amendment.

But I think maybe sometimes we forget that driving is a privilege. NOT a right. If the police were breaking into peoples homes and testing blood without warrants then I would be completely against it. But by driving you are participating in a privilege and there are rules because it is so easy to take someone elses life with impaired judgement. If LE has a reason to believe you're drunk and perform a field sobriety test and find it prudent to preform a breathalyzer or blood test and you refuse then I'm sorry but how is that not an admission of guilt. If you want to drive then you have to accept the responsibility. And if you refuse, then you are removed of that privilege. Ive personally seen how alcoholism can destroy families. So when you're participating in a privilage and you understand that violating that privilege can take someone elses life then the rules of thay privilege apply. Not the constitution. Theres no amendment about the RIGHT to drive and the RIGHT to refuse a search that may deem you unable to participate in that privilege.

[LittleLebowski]

Im not looking to step on any toes here by saying this and believe me. I support the constituion with my whole heart and believe very much in the 4th amendment.

But I think maybe sometimes we forget that driving is a privilege. NOT a right. If the police were breaking into peoples homes and testing blood without warrants then I would be completely against it. But by driving you are participating in a privilege and there are rules because it is so easy to take someone elses life with impaired judgement. If LE has a reason to believe you're drunk and perform a field sobriety test and find it prudent to preform a breathalyzer or blood test and you refuse then I'm sorry but how is that not an admission of guilt. If you want to drive then you have to accept the responsibility. And if you refuse, then you are removed of that privilege. Ive personally seen how alcoholism can destroy families. So when you're participating in a privilage and you understand that violating that privilege can take someone elses life then the rules of thay privilege apply. Not the constitution. Theres no amendment about the RIGHT to drive and the RIGHT to refuse a search that may deem you unable to participate in that privilege.

This is not about the driver of the vehicle.

[Dagga Boy]

So at a time when slavery was legal, law enforcement should have arrested human property owners because they felt it was wrong? Johnny Law should have arrested several of the founding fathers and writers of the constitution? I have a framed contract of indentured servitude of some poor Irish family hanging in my bedroom as a big fat reminder of how bad this stuff is, and why we legislate to fix humanities wrongs. The same cop who didn't arrest a human property holder when it was legal will be expected to arrest the same slave holder when it is deemed not legal. L/E is not in the business of doing what they think is "right", they enforce current law....which often changes.

So in the case of your locked suitcase counselor........does it get opened at the airport without a warrant? Why, because you basically gave consent as part of you volunteering to get on an airplane. In the case of intoxication evidence, it was deemed by the courts to be consent when you volunteered to drive on a public highway. That changed with a court decision. Just like having to advise suspects of their rights verbally. People don't like the way current laws and procedures work, they get challenged all the time, and some times they change. Personally, "I" think a lot of laws and procedures are in violation of the second amendment, but my personal feelings should not be how I enforce the law, just like I shouldn't personally rebel if the law changes. You simply adapt to a system that is in constant flux. If it gets to the point that your conscious over rules those laws, you need to quit L/E. My conscious was not shocked on DUI evidence collection. It would be shocked if the law changed and I had to go into peoples homes and confiscate their guns......and I would have quit if that was the case. Some L/E folks may have to make those decisions in the future.

Unlike lawyers, who get to change what side they are on based on what table they are sitting at that day, L/E simply has to react and work within the parameters of what comes out of those court rooms.

[jlw]

nyeti,

The logic of the argument that you are making suggest that you would be okay with confiscating firearms from people in public if a was passed to do so. Please go back to each post that you have made in this thread and substitute firearms confiscation for blood draws and then look at how the posts read.

[Dagga Boy]

Don't make an argument that is not there. I have confiscated hundreds of firearms from people. They committed crimes with them. Nowhere did I say that we should be forcing blood from people who did nothing wrong. In the case of DUI, they used their body to commit a crime and it holds evidence. A one point the courts ruled that implied consent and admin. per se was in accordance with the 4th amendment and later that changed. Keep in mind, that was at the last stop in the process.
So jlw, would you not confiscate and arrest someone with an illegally converted machine gun in their possession? It is in violation of the second amendment on its face. How about a felon, or a young teen with a pistol.....2nd amendment doesn't separate age or criminal status, current law and the courts do. Part of our system is that higher courts have made lots of decisions that I do not agree with, yet I am bound by them. They have made decisions I like, yet others are disturbed by them. The system is not fair, it is not always what we desire, and I don't think everyone will always be thrilled, but the other options suck worse.

We can do this all day with changes. Whether it is sodomy laws, marijuana laws, states rights, gun laws, or taxation laws........stuff changes and L/E needs to be in compliance with the changes as they occur and not making it up as they see fit. Keep in mind that L/E is a reflection of society. Sometimes we don't like what we see when we look at that reflection in history, and other stuff we miss.

[ToddG]

So at a time when slavery was legal, law enforcement should have arrested human property owners because they felt it was wrong?

I get it, dude. They were just following orders. Befehl ist Befehl.


So in the case of your locked suitcase counselor........does it get opened at the airport without a warrant? Why, because you basically gave consent as part of you volunteering to get on an airplane. In the case of intoxication evidence, it was deemed by the courts to be consent when you volunteered to drive on a public highway.

There are signs all over the airport explaining that both my baggage and I are subject to search and every person/bag is searched without prior subjective evaluation by a LEO. Did California put signs up on every street telling people that operating a motor vehicle subjected them to forced blood draws? Were all drivers on all streets tested or just those that pinged an officer's radar?

Do you think an airport employee or TSA employee can force you to provide a blood sample without a warrant?

BTW, I think it would be much different if the state actually had, as part of its driver's license application process, a requirement to check a box subjecting the applicant to breathalyzer or even blood tests in the future. There would need to be some reasonable burden of proof before the test could be administered but driving, as mentioned above, is a privilege. Keeping people out of your alimentary canal is a right. No means no.


Just like having to advise suspects of their rights verbally.

I think that's a much better analogy. In that instance, SCOTUS acknowledged that it was, essentially, changing the legal landscape. It didn't say, "Everyone has always had 5th Amendment protections and those silly local coppers are all Constitution-ignoring criminals." It said that moving forward the 5th Amendment protections in the BoR would apply to state/local prosecutions and that suspects had to be advised of those rights directly.


Unlike lawyers, who get to change what side they are on based on what table they are sitting at that day, L/E simply has to react and work within the parameters of what comes out of those court rooms.

That's a silly crack at lawyers and you know better. How many California prosecutors moonlight as defense attorneys on the side?

[Tamara]

I get it, dude. They were just following orders. Befehl ist Befehl.


1793

Really? The full Godwin? I was just getting ready to comment on how thoughtful this discussion was, too.

[TCinVA]

Getting warrants is pathetically easy in many places. The magistrates in my area are basically a rubber stamp.

[Dagga Boy]

"I get it, dude. They were just following orders. Befehl ist Befehl."

Wow, it took that long? I was expecting that earlier. You probably are not aware of this, but I actually worked for the Museum or Tolerance teaching LEO's about tolerance, with a great deal of obvious focus on the Holocaust. My grandmother called me a "Policemench", so you can stop now. I said earlier, there will be a time to draw the line. DUI drivers were not mine. They were committing a very public crime, on very public roadways, that victimized the innocent, and infringed on the rights of all members of the community. I never forced a blood or even arrested a single person for driving drunk on their own property. Just like I did not go around and break into peoples homes without cause to seize their property. The one time I was ordered to perform an action that I felt was wrong, I happily took the punishment ride for crapping all over the supervisor in my report when I documented his actions that I felt were wrong. Essentially, unlike talking about it, I called it when I felt an illegal action was taken.......and due to rank disparity got shafted. I sleep fine, am adult enough to know that life is not fair, and some things in life are not just.

LEO's need to follow the law. Even if we don't like it. You do not want them making it up as they go along or only enforcing their laws. As the cases brought up here illustrate, there is a system to change the laws and standards when society does not like them or desires to set different limits, and the courts agree with them.......or the courts disagree and do whatever they want...L/E gets stuck in the middle of that.

By the way Counselor, I did not see you arguing in the 9th Circuit against implied consent and how it was applied. Maybe you could have done better than the lawyers before you and you would have either had the signs you want, or been a hero to drunk drivers everywhere and their attorney's. I like the system that is in place that Coyote was talking about.......now you can hammer the guy for violating a court order on top of all the DUI stuff, so it works out better. I would have been all over the current system.

[Dagga Boy]

I just thought of something else, so we can do this cool devil's advocate stuff:cool:.

What do you think the standard of evidence is for "Public Intoxication"?.....None, it is because the cop says so. No test, no evidence, no nothing. If I had a nickel for all the folks arrested for Public Intox. who wanted a test to "prove" they were not too drunk to care for themselves. Nope, just my word against theirs. How do you think DUI's used to work? Do you think Kalifornia was upholding required testing to protect the LEO's or maybe it was partially to protect the citizen (who was probably intoxicated and in an altered state) from LE abuse. I would imagine that in the "old days", plenty a person went to jail for drunk driving who were actually guilty of pissing off a policeman. The only recourse a citizen arrested for driving while intoxicated really has is the physical evidence of their crime. It is why that evidence is the FIRST thing looked at when dismissing charges, and the FIRST thing attacked when it shows guilt. We had plenty of folks exonerated of DUI when their blood test came back. None of mine, I was 100% over my career, but I was also very careful about the decision I made to arrest for DUI, and I tended to lean towards error on the side of the driver.

[Josh Runkle]

Im not looking to step on any toes here by saying this and believe me. I support the constituion with my whole heart and believe very much in the 4th amendment.

But I think maybe sometimes we forget that driving is a privilege. NOT a right. If the police were breaking into peoples homes and testing blood without warrants then I would be completely against it. But by driving you are participating in a privilege and there are rules because it is so easy to take someone elses life with impaired judgement. If LE has a reason to believe you're drunk and perform a field sobriety test and find it prudent to preform a breathalyzer or blood test and you refuse then I'm sorry but how is that not an admission of guilt. If you want to drive then you have to accept the responsibility. And if you refuse, then you are removed of that privilege. Ive personally seen how alcoholism can destroy families. So when you're participating in a privilage and you understand that violating that privilege can take someone elses life then the rules of thay privilege apply. Not the constitution. Theres no amendment about the RIGHT to drive and the RIGHT to refuse a search that may deem you unable to participate in that privilege.

You absolutely can have your privilege of driving removed. That's fine. But it can't be that you give up your rights in exchange for the privilege.

For the record, I NEVER drink and drive, and I never do/have anything illegal in my home, but I would not consent to a warrant less search in either case. Does that suddenly make me guilty? The police, when investigating a crime, are not there to help you, they are there to find evidence and help build a case. Allowing them to do so, should the case be about me, goes against my own self-preservation. I respect the police and their role in society. I respect those who wear the badge even more. But I must recognize that at times, in the course of their duties, they jeopardize my own well-being, EVEN IF I AM NOT GUILTY AND HAVE NOTHING TO HIDE. Therefore, on the smallest of small chances that my own well-being is at risk, I will not co-operate in such instance to potentially endanger myself. I would respectfully ask for a warrant. If they do not get one, they can respectfully take away my privileges, should they wish.

[Josh Runkle]

Do you think an airport employee or TSA employee can force you to provide a blood sample without a warrant?


God can do anything he wants to.

[Dagga Boy]

We do realize that the only change in this is simply some slight oversight that L/E now has to jump through. The process and result is exactly the same with the only difference being another piece of paper and a phone call to a judge. Simply a case of another layer of check and balance. Or is what you guys are saying is that even with a judge's order to collect evidence you would still not comply? If the only difference between a heinous abuse of your rights by L/E and everything being perfectly fine is a phone call....well okay, I guess it is all better now. Or, is the argument that you don't have to comply with the warrant either?

[jlw]

So jlw, would you not confiscate and arrest someone with an illegally converted machine gun in their possession?

If they were using it in a crime, yes, I would arrest them for the crime. For simple possession, nope, and I have had the opportunity. if I arrested them for it, they might not let me shoot it the next time we got together at the range.

Forcibly sticking a needle in someone's arm, drawing blood, and conducting a chemical analysis is a search.

[Josh Runkle]

We do realize that the only change in this is simply some slight oversight that L/E now has to jump through. The process and result is exactly the same with the only difference being another piece of paper and a phone call to a judge. Simply a case of another layer of check and balance. Or is what you guys are saying is that even with a judge's order to collect evidence you would still not comply? If the only difference between a heinous abuse of your rights by L/E and everything being perfectly fine is a phone call....well okay, I guess it is all better now. Or, is the argument that you don't have to comply with the warrant either?

I would absolutely comply with any warrant. My earlier post is only about "helping" the police provide evidence against myself when they don't have a warrant.

[Tamara]

I would absolutely comply with any warrant. My earlier post is only about "helping" the police provide evidence against myself when they don't have a warrant.

The warrant thing is kinda written right into the Fourth.

(I won't tangent this off on how some inner part of me gets all wookie-suited at how the breath from my own lungs can only be used to violate my Fifth Amendment rights if it vibrates my vocal cords on the way out... ;) )

[ToddG]

LEO's need to follow the law. Even if we don't like it. You do not want them making it up as they go along or only enforcing their laws. As the cases brought up here illustrate, there is a system to change the laws and standards when society does not like them or desires to set different limits, and the courts agree with them.......or the courts disagree and do whatever they want...L/E gets stuck in the middle of that.

So the is the gist of your argument that it was ok to draw blood against their will, or simply that cops shouldn't be put to the torch for doing so because someone up the chain said it was OK? I'm genuinely unclear whether you're arguing the Constitutionality of the act or just getting upset that someone said a cop was wrong.


By the way Counselor, I did not see you arguing in the 9th Circuit against implied consent and how it was applied.

I didn't see you head over to Darfour or Rawanda. Should I take it, then, that you're ok with what happened there? Or is it possible that not everyone fights every battle against every wrong on every level in every place?


Maybe you could have done better than the lawyers before you and you would have either had the signs you want, or been a hero to drunk drivers everywhere and their attorney's.

Can you envision a world in which someone has an opinion that isn't as simple as either "any search is ok if it prevents DUI" and "no one should ever be convicted of DUI?" Because absolutely nothing I've said would suggest to a sane reader that I'm in favor of DUI or want to protect people against being prosecuted for DUI. I'm also not fond of child molesters... but I wouldn't throw the Constitution out the window just to get at them, either.


We do realize that the only change in this is simply some slight oversight that L/E now has to jump through. The process and result is exactly the same with the only difference being another piece of paper and a phone call to a judge.

That "slight oversight" is called due process. It's clearly unimportant to you, but the U.S. criminal justice system is built upon its foundation.

[LSP972]

Did it a TON with DUI's for a variety of reasons. The key is they have to be legally under arrest first.

Exactly. Here, its called "implied consent"... If a serious injury or fatality occurred, you cannot refuse a chemical test.

I've helped hold down more than a few combative drunk drivers who just killed an innocent person/persons (and refused the test), to get the stick. Because now it is no longer a DUI, but Vehicular Homicide.

But this one... they shoulda got a warrant.

ETA... I just read the rest of the thread. I suspect some of you who are all up in arms regarding getting blood from an uncooperative drunk driver wouldn't be so self-righteous if it was YOUR loved on on the coroner's slab...

.

[ToddG]

(I won't tangent this off on how some inner part of me gets all wookie-suited at how the breath from my own lungs can only be used to violate my Fifth Amendment rights if it vibrates my vocal cords on the way out... ;) )

Because it's not the breath itself, it's the words you speak that are protected by the 5th.

[Tamara]

Because it's not the breath itself, it's the words you speak that are protected by the 5th.

I get what you're saying, but when I'm Queen of the Universe, there will be penumbras emanated all over that.

[Josh Runkle]

Exactly. Here, its called "implied consent"... If a serious injury or fatality occurred, you cannot refuse a chemical test.

I've helped hold down more than a few combative drunk drivers who just killed an innocent person/persons (and refused the test), to get the stick. Because now it is no longer a DUI, but Vehicular Homicide.

But this one... they shoulda got a warrant.

ETA... I just read the rest of the thread. I suspect some of you who are all up in arms regarding getting blood from an uncooperative drunk driver wouldn't be so self-righteous if it was YOUR loved on on the coroner's slab...

.

That would be involuntary consent.

Implied consent is when the person cannot give you the directive, but it is reasonably prudent that they would ask you to do so. IE: someone is hypoglycemic and you give them D50. The idea is that if they could speak and ask for it, they would not wish to die, and would want the sugar in their blood (brain). Implied consent is only to help someone by giving them what a reasonably prudent person would ask for if they could communicate, being in the right "state of mind".

Involuntary Consent exists when a person is under arrest or a ward of the state. Involuntary consent without a court order is performed in the best interest of the patient, IE: the patient is suicidal, they are here under arrest, and you will watch them. Or, they are under arrest and are believed to have overdosed on drugs...although...most of the time overdoses are not under arrest, they are just under implied consent, not involuntary, because the patient could have lost consciousness due to something else. Either way, involuntary consent without a court order exists to be performed in the patient's best interests. So, the possibly drunk driver who has killed someone can have blood forcibly drawn to see what is causing the impaired mental status, so that the patient can be treated. The court would subpoena the findings. For the hospital to give the findings to the police without the consent of the patient, that would be a violation of HIPPA. If a court order exists, someone would be a "ward of the state", and it is implied that the state is acting in the best interest of the "ward" to have the information. This would be, for example, a prisoner.

Unless specific state laws specify what instances law enforcement can have access to health information during the commission of a crime, I am not aware of a way that law enforcement can have battery committed on their behalf, and those records, obtained illegally, to be used to incriminate a person.

[KeeFus]

Getting warrants is pathetically easy in many places. The magistrates in my area are basically a rubber stamp.

This. When I was kicking doors regularly I could get a search warrant in less than an hour...with a genuine signature. Search warrants for blood are even easier. Although I have not had the need (or desire) to get one the ones I have seen were more-or-less like check the block.

[Dagga Boy]

"So the is the gist of your argument that it was ok to draw blood against their will, or simply that cops shouldn't be put to the torch for doing so because someone up the chain said it was OK? I'm genuinely unclear whether you're arguing the Constitutionality of the act or just getting upset that someone said a cop was wrong."

Sorry, I don't know how to break posts up to replay to them. I'll just do my best with this.
The Constitutionality was challenged. The 9th Circuit upheld it for my entire career. At some point another case using a different reason made to the Supreme Court and new standards came out. I don't think I was doing anything "wrong", I was acting within current case law involving a very specific and challenged process. Time and standards change, and L/E changes with them. Do you think that pre-Miranda cops were evil bastards who knew they were doing something wrong? When cops do things clearly wrong, they get prosecuted or a civil remedy is levied. Sometimes societies standards change or technology changes and courts need to rule when issues arise. I am sure a Model T was searched at some point because it wasn't a private home and then the court had to decide that it carried some of the same protections. How about "plain view"........that will change when our ability to view things changes. None of this is "black and white". If it was, two attorney's standing in the same courtroom would agree on everything because they are reading all the same laws and opinions, yet seem to end up with a 180 degree opinion of what those words say.

Now, when cops really do stuff wrong.....I am pretty harsh in my opinions. If you look at the ACLU case against my old department for videotaping the men's locker room (talk about police academy law 101), and see whose name is the only one against the settlement by the ACLU because only the taxpayers got monetarily punished and no one was held responsible.....you'll find a familiar name. Yea, I fought getting money because I thought accountability was more important.

Like I said, in a previous age, cops just said you were drunk driving and that was it. Things change and everyone has to work with it.

[Dagga Boy]

If they were using it in a crime, yes, I would arrest them for the crime. For simple possession, nope, and I have had the opportunity. if I arrested them for it, they might not let me shoot it the next time we got together at the range.

Forcibly sticking a needle in someone's arm, drawing blood, and conducting a chemical analysis is a search.

You do know that Larry Phillips Jr. and Emil Matasareanu were arrested for building illegal weapons before they used them. Court failure at that point, but not all gun folks are our friends.

Nobody ever said that a blood draw wasn't a search. It was ruled in the past that it was a search that L/E was entitled to without a warrant. There are lots of searches that L/E can do without a warrant that are CURRENTLY legal. Plain view, exigent circumstances, consensual, some where one party can give consent to another's shared area, subsequent to arrest, inventory of a impounded vehicle, etc. Do you take property from your prisoners after you arrest them....and look at it.....without a warrant? Legal now, yet may require a warrant some day.

[LSP972]

Implied consent is only to help someone by giving them what a reasonably prudent person would ask for if they could communicate, being in the right "state of mind".




Perhaps in Ohio. Here in Louisiana, it means that if the cops have probable cause to believe you are impaired, you must submit to a test or face dire consequences (revoked D/L). If a traffic fatality has occurred, you cannot refuse.

At least, that's the way it was years ago. Like Nyeti said, times change. I do know that the 14.98 statute here (which is the state code dealing with impaired operation of a motor vehicle) was changed to lower the legal impairment limit from .10g% BAC to .08g% BAC a while back... other changes also may have been done. I've been out of THAT loop for many moons, as I spent the last years of my career in plain clothes and never got near a marked unit or a ticket book/DWI arrest form.

But I have worked two fatality wrecks where Driver #1 was hammered, refused the test, we drew the blood by force, and convicted the bastards of vehicular homicide. Both of those oxygen thieves were repeat offenders, too.

Make of that what you will. I call it justice.

.

[jlw]

You do know that Larry Phillips Jr. and Emil Matasareanu were arrested for building illegal weapons before they used them. Court failure at that point, but not all gun folks are our friends.

Nobody ever said that a blood draw wasn't a search. It was ruled in the past that it was a search that L/E was entitled to without a warrant. There are lots of searches that L/E can do without a warrant that are CURRENTLY legal. Plain view, exigent circumstances, consensual, some where one party can give consent to another's shared area, subsequent to arrest, inventory of a impounded vehicle, etc. Do you take property from your prisoners after you arrest them....and look at it.....without a warrant? Legal now, yet may require a warrant some day.

Plain view: if you can see someone's blood and measure the BAC with your eyesight, have at it and more power to ya.

Valid consent negates the need for a warrant. Forcibly sticking a needle into someone's vein in order to withdraw their blood for chemical testing without consent is not consensual.

You've already stated in a previous post that you weren't basing such searches on exigency, but just to be thorough, the court specifically found that argument to be "unpersuasive" and rejected it.

Search incident to arrest has been upheld by the courts, but such searches are limited in scope to specific categories, none of which would allow for the forcible sticking of someone with a needle and drawing their blood for chemical analysis.

Common areas: you got me. You are free to test any of my blood that you find in someone else's body.

And finally: Now this is the good one, mind you. A couple of years ago, some popo in AZ waited until a guy pulled into his own driveway to contact and arrest him for driving on a suspended license. They then searched the guy's car incident to arrest and low and behold they found evidence of a crime and charged him with that too. When asked on the stand why they searched the car, the officer said, "BECAUSE I CAN. The court then said, (paraphrased) "Well, now you can't."

The key phrase in the 4th Amendment is "unreasonable" and stabbing somebody with a sharp object in order to do a search clearly just isn't reasonable.

[BLR]

Before this gets too much further down the Eichmann Defense Philosophy road, perhaps something should be made clear - and I think most will agree with me:

The coppers like jlw, nyeti, keefus, lon, and so on are the ones we want and need on the street and teaching new coppers how to do the job.

Thanks guys.

But also keep in mind, you are the first line of defense for unconstitutional laws - please keep in mind what Jefferson said: "If a law is unjust, a man is not only right to disobey it, he is obligated to do so."

I'm going to play with some of my guns, watch some MST3K, smoke some Bullseye in my Ferndown, drink a couple Mojitos, and forget my (petty by comparison) troubles.

Carry on.

[Dagga Boy]

Keep in mind, quite a bit of this is also regional (that whole 10th Amendment thing...which is also under quite a bit of attack). In the state I worked in, part of the DUI laws were that when you signed for your drivers license, or used the same privilege, there was a specified consent to what was required to be provided if arrested for DUI. The state and federal courts of the jurisdiction upheld that over and over again. Then, a case from another state and another court used a different reason for the same procedure, and that was disallowed by the supreme court. New criteria were required to comply with what the SCOTUS required for the current interpretation of the law, and law enforcement is complying......I am missing the issue. There are all sorts of different laws in different parts of the country that are very regional with slight variances that fit with the courts in those areas (the difference between my old home state of California and Texas are like two different countries....which is good). The second amendment has been jacked with all over the country by different state and local laws and have been upheld by the courts. It doesn't make the cops in those areas evil for enforcing those laws even if they are affronted by them. Eventually, a Heller case comes along and some good happens. Again, I really think it is a bad thing for police officers to start interpreting laws themselves.

L/E works within frameworks. You have to try to stay up on the laws and you work with the current laws. It is good cop work. An example, you contact a guy who is a local dope dealer. During a pat down you feel what is probably a bag of dope. You could probably articulate a reason to recover it, but if you are smart you run a warrant check and find an outstanding arrest warrant. You arrest the guy, go to the station, and "find" the dope during a routine property search.......or advise the subject that bringing narcotics into a custody facility is a separate felony, and it may be a good idea to advise me that you are carrying narcotics before we get there...thus a voluntary consent. Now someday, the inventory search subsequent to an arrest may get challenged and upheld with some new requirement, but until then it is current law.

[Dagga Boy]

"And finally: Now this is the good one, mind you. A couple of years ago, some popo in AZ waited until a guy pulled into his own driveway to contact and arrest him for driving on a suspended license. They then searched the guy's car incident to arrest and low and behold they found evidence of a crime and charged him with that too. When asked on the stand why they searched the car, the officer said, "BECAUSE I CAN. The court then said, (paraphrased) "Well, now you can't.""

This is why we lose things, and the kind of things that cause new case law. Activist cops, activist judges, and activists in the legislative and executive branches all cause their own issues.

[LSP972]

But also keep in mind, you are the first line of defense for unconstitutional laws - please keep in mind what Jefferson said: "If a law is unjust, a man is not only right to disobey it, he is obligated to do so."



Indeed. That is one reason why I retired when I did. What happened in New Orleans during Katrina- blatant abrogation of the Second Amendment- was a travesty... what was FRIGHTENING about it was that many of the cops who were involved did not even think twice before blithely "following orders". Fortunately, I had been pulled back to the EOC in Baton Rouge before all that went down. But I knew that if, given those orders, I would refuse to carry them out. Rather than maybe have to face that potential career-destroying decision, I bought some military time to max out my pension and bailed.

I understand your reference to Eichmann; but each of us must interpret things our own way. I am also a staunch defender of the constitution; but when dealing with certain miscreants who have already convicted themselves, I am less inclined to worry about the niceties of the document. By "already convicted themselves", I mean individuals who you KNOW, beyond a shadow of a doubt, did the crime/etc. you think they did... to wit, the bloody, combative drunk you dragged out from behind the wheel of a vehicle that crossed the center line and slammed into another one that has a dead mother and child in it... well, there isn't much doubt as to who the villain is here.

So yes, I gladly abrogated that particular individual's fourth amendment rights- if indeed that's what they were- and would do it again in a heartbeat. In fact, I DID do it again a few years later. So if the legal guidelines under which I did these things were unconstitutional... tough bananas. As far as I'm concerned, anyone who willingly drives while knowingly impaired is no different from your garden variety armed robber. If both were dealt with more harshly, then our world would be a better place.

Yeah, yeah, I know... that's a "slippery slope". All I'm saying is, those who bleat about how all these sort of issues deserve the same consideration... have probably never had to deal with them face to face. Because they ARE different.

Does that thought process make me a "bad" person?

Dunno.

Don't CARE.:)

.

[Dagga Boy]

LSP, at the time it wasn't considered a violation of the 4th Amendment. We don't really get to go retro on these things. You were conducting yourself in a manner that was tested and okayed by the courts. That changed, and the only thing that changed was not what was done, it was that implied consent was deemed to need a judge to okay the process on an individual basis. Again, I do not consider the LEO's of some cities who have lost 2nd amendment cases criminals for arrests made ten years ago within the upheld laws of the time. If they did it now....different story.

For those commenting here. It should actually make you guys happy that many of us knew/know what the current court laws and rulings on specific processes are. Want to know why we knew that courts have okayed forced blood in the past in some states.....we asked and checked, because maybe it seemed "weird" to us. That way when you get an unlawful order, you know it. We have also bought punishment for refusing illegal orders or at least documenting the illegal order for the citizen it was used against so they have recourse....basically, we didn't lie for our bosses, and that does not get you on the executive staff Christmas list. These are the same guys who know exactly where the line is an are very likely to be the ones fighting as hard to prevent abuse of the citizenry as we fight to enforce the laws used to protect that same citizenry. I did not have a single case ever where someone I arrested for DUI's blood did not come back above the state specified limit. I was also able to get medical help for those in diabetic crisis because even though they had ALMOST every symptom of intoxication, they didn't meet all of the standards and I erred for the citizen....and saved a couple of lives in the process instead of the impression that we just strap them in and force a blood (which was actually a very rare occurrence and tended to be with those "DUI vets" whose attorney's told them the only way they could defend them is to not let the cops do any tests). I would be pretty confident in saying that not a single LEO on this board would ever be seen taking a gun from an old lady after a hurricane (maybe some impromptu lessons, but not illegal confiscation) or talking some doctor into paralyzing a guy to get some dope without a warrant.

[LSP972]

LSP, at the time it wasn't considered a violation of the fourth amendment.

I know. But I become a bit weary of all the legal beagle I-experts who haven't walked in our shoes, yet feel qualified to criticise everything we did... Let alone lumping all of us together with the few bad apples.

I was being... snarky...;)

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[jlw]

Deleted.

[Tamara]

I become a bit weary of all the legal beagle I-experts who haven't walked in our shoes, yet feel qualified to criticise everything we did...

That's an occupational hazard and it comes with the turf. People who don't know anything about burger-flippin' are gonna criticize burger-flippers; people who don't know anything about presidentin' are gonna criticize presidents; po-po-in' doesn't get any pass on that.

Big pet peeve of mine. I hate when I hear "You don't know anything about the realities of..." almost any job you can think of.

Yeah? If your job involves interacting with the public, the public's gonna criticize. Deal.

[LSP972]

Yeah? If your job involves interacting with the public, the public's gonna criticize. Deal.

Very true. I wasn't specific enough: you're correct, the public has a RIGHT to be critical. What I was talking about (and didn't clarify) are the self-proclaimed experts who pick apart incidents with assumed authority, yet have no clue how the things generally occur, what triggers them, etc.

Remember, I'm on your side of the fence now... lotsa these younger coppers could not care less about retirees.:cool:

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