Texas Court Throws 2nd, 4th Amendments Under The Bus

[Feuer Frei!]

Texas courts have ruled that because legally owned firearms represent “a threat of physical violence” to police, officers may ignore the 4th Amendmen (http://www.westernjournalism.com/blogging-tools/historical-documents/american-values/the-bill-of-rights/)t rights of Texas residents by treating ALL legally issued warrants as “No Knock” warrants, even if the issuing judge has made it clear that officers “…must knock on the door and announce their identity and purpose before attempting a forcible entry.”


SOURCE (http://www.westernjournalism.com/texas-court-throws-2nd-4th-amendments-under-the-bus/?utm_source=rss&utm_medium=rss&utm_campaign=texas-court-throws-2nd-4th-amendments-under-the-bus)

[Oberon]

http://25.media.tumblr.com/ef92a456977429b40141f39328cb349f/tumblr_mhbaibquEV1qcwhkeo1_250.gif


http://31.media.tumblr.com/0f4766d0af5874bd390ce4abf731598b/tumblr_mhbaibquEV1qcwhkeo2_250.gif


2nd Amendment/Gun Control:
http://www.subsim.com/radioroom/showthread.php?t=203106
http://www.subsim.com/radioroom/showthread.php?t=210166
http://www.subsim.com/radioroom/showthread.php?t=210304
http://www.subsim.com/radioroom/showthread.php?t=209778
http://www.subsim.com/radioroom/showthread.php?t=209157

[Tribesman]

Sounds reasonable.
If you are looking for a criminal and you believe the criminal is armed you wouldn't want to just stand there at the door and ring the bell.
You might get shot.

Alternately the householder might think that armed men at his door constitute a threat and that he has the protection of castle doctrine to shoot them.

Such are the joys of prolific ownership of firearms:hmmm:

[Oberon]

Sounds reasonable.
If you are looking for a criminal and you believe the criminal is armed you wouldn't want to just stand there at the door and ring the bell.
You might get shot.

Alternately the householder might think that armed men at his door constitute a threat and that he has the protection of castle doctrine to shoot them.

Such are the joys of prolific ownership of firearms:hmmm:

Just...don't pour petrol on the fire, Tribesman, come on...you know where this thread goes, and there's no point in trying to stop it going there. Just let them have their complaints against Obama and move on to the next thread. :/\\!!

[Armistead]

Be great if you're in the door business, cops get a minor warrant, know the guy has a legal firearm and decide to bash the door in and charge in..and of course you'll have to pay to replace your door. Not only that, if when charging in as police have often done, they see your dog barking and trying to protect your home, it becomes a threat they can freely shoot it...but don't get upset or mad about it....Anways, crap like this leads to more people getting shot. Seen several cases where homeowner hears his door getting kicked in, gets his gun to protect family, police come in and see him standing there with a gun and shoot before he can figure it all out and lay his gun down.

[GoldenRivet]

as I am someone who generally keeps an eye out for this sort of news... i must point out that even for my taste, this "source" is one of this "They took Muh freedoms!" websites full of one sided opinion rather than multi-sided fact.

The problem i have with these sorts of sites is that anyone can take a complex and compelling story and turn it into a three quarter page text about how we arent free any more.

the fact is: When serving a warrant, the police have to knock and announce... UNLESS there is the possibility of threat to the police, or there is the risk that evidence sought in the warrant may be destroyed or otherwise rendered useless. This has been the supreme court ruling for decades if memory serves. As a police officer you can get to the door and say "you know what, this guy is armed, and there are certain bits of evidence we are looking for that can be destroyed if we knock, so Im making the command decision to exercise this warrant on a no knock basis"

In practical application, it does not matter if the warrant specified that the police must knock and announce - even if it says "You have to knock and announce" right there in black ink on page one of the warrant because they can over-ride that on site of search on a case by case basis.

this knock and announce requirement is most commonly over-ridden in cases of felony drug possession (such as was the case in the Quinn warrant) for the reason that the drugs, especially in smaller quantities, might be destroyed and rendered unusable as evidence.

The article you linked provides a number of quotes on the raid such as "... based solely on the suspicion that there were firearms in the Quinn household." however there is no links nor is any credit given to source material of the quote be it a document or an individual. For this reason, you have to take this article for what it is... any form of responsible journalism or reporting interested in case facts rather than appealing to emotion would have credited source material or individuals when quoting anything.

Researching the Quinn Drug raid on my own i have learned that it has a complex back-story beginning over 20 years ago with a very intensely venomous divorce case involving Quinn which eventually culminated in child custody suits, accusations of violence and even drug possession and dealing etc.

my guess is that the police were justified in their decision to conduct a no knock entry, knowing many officers as i do... i am sure a large part of their decision had more to do with the nature of the drug evidence than the simple fact that the man was a gun owner.

Hell... in Texas you are more a suspect for not being a gun owner than being one.

[Kazuaki Shimazaki II]

the fact is: When serving a warrant, the police have to knock and announce... UNLESS there is the possibility of threat to the police, or there is the risk that evidence sought in the warrant may be destroyed

That already seems like a dangerous amount of discretion given to the police. What stops them from using their discretion to rule every time there is a threat?

[August]

That already seems like a dangerous amount of discretion given to the police. What stops them from using their discretion to rule every time there is a threat?

I wonder that as well.

[Cybermat47]

Oh look, another flame war waiting to start :doh:

[Sailor Steve]

Oh look, another flame war waiting to start :doh:
Not this time. :sunny:

[Feuer Frei!]

Oh look, another flame war waiting to start :doh:
It seems you don't have much faith in the community as a majority?
In relation to discussing subject matter?

So far you have:Tribesman, Armistead, GoldenRivet, Kazuaki Shimazaki II and August discussing the thread in a civil and mature manner.
That's a total of 8 out of 9 posters (excluding Steve) which is a pretty good hit rate so far.
I don't see the advantages of your post? In any way?

[Cybermat47]

It seems you don't have much faith in the community as a majority?
In relation to discussing subject matter?

So far you have:Tribesman, Armistead, GoldenRivet, Kazuaki Shimazaki II and August discussing the thread in a civil and mature manner.
That's a total of 8 out of 9 posters (excluding Steve) which is a pretty good hit rate so far.
I don't see the advantages of your post? In any way?

Sorry, it's just that in my experience, both in real life and on the internet, any discussion about gun control soon turns into an uncivil insult-fest.

I'm hoping to be proven wrong here.

[GoldenRivet]

That already seems like a dangerous amount of discretion given to the police. What stops them from using their discretion to rule every time there is a threat?

The court

The police have to knock and wait a "reasonable amount of time" for you to answer. Once the reasonable amount of time has passed they are within the limits of the warrant to kick the door down.

however, When these decisions are made by police in the field to over-rule the warrant and kick the door down without knocking when it is a knock only warrant, it is reviewed apparently on a case by case basis by the courts.

For example:

If you were suspected of steeling say... a car, and you were keeping it in your garage, the cops would not be justified in just kicking your door down and running in on a standard knock and announce warrant... however if they DID make the decision to do that for fear that you were going to flush the stolen property down the toilet, the court would very likely not look kindly on it and would therefore not allow the vehicle being found on your property to be admitted as evidence in a trial against you.

Thats why this sort of field decision is easily made and can be justified in a court of law when they are searching out a baggie of crack and not easily upheld in a court of law when they are looking for 5 suitcases full of stolen money, or a stolen car, or a bedroom full of stolen TVs and XBOXs etc.

Example 2:

a couple of police cars pull up on your property to serve a knock and announce warrant for your suspected possession of a stolen vehicle (or whatever tangible property). A neighbor approaches the officers as they walk toward your front door and informs them that he has seen you through your windows walking around all morning with a rifle. The officers decided to just bust in, instead of knock and announce, they surprise you, you drop the rifle, hit the dirt and they subdue you, they find the stolen property and arrest you. Bam... it all holds up in court and you are found guilty. sorry, dont steal a car next time.

Example 3: (in line with the scenario from the original post)

a couple of police cars pull up on your property to serve a knock and announce warrant for your suspected possession of a stolen vehicle (or whatever tangible property). A neighbor approaches the officers as they walk toward your front door and informs them that he has seen you through your windows walking around all morning with a rifle. The officers decided to just bust in, instead of knock and announce, they surprise you...

...here's where it gets interesting

this time you dont drop the rifle, you are surprised as you round the corner and see guys with guns in your living room making a commotion... before you have half a second to think about whats happening you shoulder the rifle to defend yourself against what you assume to be an intruder.

the cops shoot you.

thats what happened in the original post scenario, the guy didnt die and he tells the court he shouldnt have been shot because the cops were on a knock and announce warrant but didnt knock and announce.

the position of the police is standing on the "out" that they didnt knock and announce because word on the street is you are armed and when you saw cops you shouldnt have drawn your gun.

obviously a sticky situation

[Jimbuna]

Sorry, it's just that in my experience, both in real life and on the internet, any discussion about gun control soon turns into an uncivil insult-fest.

I'm hoping to be proven wrong here.

Hopefully you will be proven wrong.

Leave matters to the moderators...predicting angst could have the effect of starting it.

Today is Sunday, the day of rest and peace and I'm looking forward to that.

[Wolferz]

Everybody knows that Texas is a whole 'nother country.:shucks:
Texas law trumps everything else. Just ask Chuck Walker Norris.:03:

[August]

It seems that the cops are increasingly going to using no knock and SWAT teams as a first choice:

Today in America, SWAT teams are deployed about 100 to 150 times per day, or about 50,000 times per year -- a dramatic increase from the 3,000 or so annual deployments in the early 1980s, or the few hundred in the 1970s. The vast majority of today's deployments are to serve search warrants for drug crimes. But the use of SWAT tactics to enforce regulatory law also appears to be rising. This month (http://www.wfaa.com/news/local/tarrant/Owners-irked-after-raid-on-Arlingtons-Garden-of-Eden--219354841.html?c=n&fb=y&can=n), for example, a SWAT team raided the Garden of Eden, a sustainable growth farm in Arlington, Texas, supposedly to look for marijuana. The police found no pot, however, and the real intent of the raid appears to have been for code enforcement, as the officers came armed with an inspection notice for nuisance abatement.

The above is from an interesting article on the problem of police militarization.

http://www.huffingtonpost.com/2013/08/15/how-to-roll-back-police-militarization_n_3749272.html

[Platapus]

This can be especially concerning if (when) the police try to serve the warrant on the wrong address. Things like this do happen.

There is a fine line that needs to be drawn between respecting the freedom of citizens and the safety of evidence and LE personnel.

I don't know where that line should be, but I do know that it needs to be decided very carefully and with full understanding of how to mitigate the risks when improperly implemented.

I also do know that giving the police almost unlimited power is a sure way to devolve away from civil rights and into a police state.

It is all well and good to give the police the authority to change the rules, on site, if the tactical aspects of the case warrant. But, then the police need to be held accountable if the wrong decision is made.

That's what concerns me the most is the growing state of immunity from any consequence resulting from the actions of the police.

In a free society, the police can not be immune from the consequences of their actions. As the governmental body most able to infringe on the civil rights of innocent citizens, the police need to be held to a high standard and accountability.

Power without accountability is what social scientists call a "bad thing".

[Sailor Steve]

the cops shoot you.
Example 4. The cops break in without warning and you shoot them. They might be able to try you for murder, but if they made no announcement at all you might get off with self defense. It has happened.

Still a sticky situation.

[Tribesman]

Leave matters to the moderators...predicting angst could have the effect of starting it.




Subscribing. :03:

[Platapus]

Example 4. The cops break in without warning and you shoot them. They might be able to try you for murder, but if they made no announcement at all you might get off with self defense. It has happened.

Still a sticky situation.

All the other cops have to do is say that they announced themselves. Who do you think the judge will side with? Unless the citizen records the audio....

How does a citizen prove that the police did not identify themselves?

Cops lie to protect other cops
Judges side with cops unless there is overwhelming evidence against them... and may still side with them.

Cops - presumed innocent
Citizen - presumed guilty

That's the type of country we have become. :nope:

I fear the police much more than I fear the federal government. And that is pretty sad.

The hypocrisy is that all this is in the name of "public safety".

[August]

Unless the citizen records the audio....



Not a bad idea and increasingly affordable these days.

[Aktungbby]

Example 4. The cops break in without warning and you shoot them. They might be able to try you for murder, but if they made no announcement at all you might get off with self defense. It has happened. Still a sticky situation. Twice in the Bay area in the last 15 years: Two Richmond officers in DEA ski mask gear in the dark were killed by an apartment dweller with a .22 rifle(through their Kevlar) as they came up the stairs stealthily. No charges were preferred against the shooter, an elderly immigrant. The really bad one was in Contra Costa county: the PD on a bad drug warrant, arrived at the wrong high end abode and broke in. The gun owning home owner was shot and killed on his stair balcony taking on supposed intruders. No charges were preferred against the keystoners. It goes both ways. They don't call the Richmond district the Iron Triangle for nothing or California the wild west for nothing.

[Aktungbby]

Today is Sunday, the day of rest and peace and I'm looking forward to that.

Ever QWERTYOUS on the Lord's day Sire!:salute:

[Platapus]

Not a bad idea and increasingly affordable these days.

I know a few co-workers who keep a digital voice recorder in their cars for if they are pulled over. A very good idea

[Stealhead]

I know a few co-workers who keep a digital voice recorder in their cars for if they are pulled over. A very good idea


The thing I am most leery of is my car/vehicle being searched.You have no way of knowing an honest cop from a crooked one that "finds" something illegal.Luckily I fairly rarely ever get pulled over and thus far I have never been asked.Thing is a rotten one can just make up a reason to both pull you over and search you.

Only issue with a voice recorder is it would not be admissible if any party being recorded was unaware so far as I understand things.So you'd have to say "This is being recorded for posterity".

All I know is I have a few friends that are in law enforcement and they all say that they would refuse a vehicle search.The whole consent thing is the law(cops) trying use the law against you.

[Wolferz]

The thing I am most leery of is my car/vehicle being searched.You have no way of knowing an honest cop from a crooked one that "finds" something illegal.Luckily I fairly rarely ever get pulled over and thus far I have never been asked.Thing is a rotten one can just make up a reason to both pull you over and search you.

Only issue with a voice recorder is it would not be admissible if any party being recorded was unaware so far as I understand things.So you'd have to say "This is being recorded for posterity".

All I know is I have a few friends that are in law enforcement and they all say that they would refuse a vehicle search.The whole consent thing is the law(cops) trying use the law against you.

I would say that refusing a search would be an exercise in futility and would only serve to make the officer suspicious. Better to be polite and not give your consent to a search. One can never know what might be found. Contraband left by a passenger will get you arrested. By not giving consent, anything found is not admissible as evidence against you if you didn't know it was there. Too many cops use the same one liner to give them probable cause to search your vehicle. "I smell Marijuana" Resist the urge for a snappy comeback like... " Gee Officer. You shouldn't smoke pot while on duty":yep:

[Platapus]

Only issue with a voice recorder is it would not be admissible if any party being recorded was unaware so far as I understand things.So you'd have to say "This is being recorded for posterity".



But the police routinely record people during stops. Why is it OK for the police to have an audio record to help them in court, but a citizen is not allowed to record the same event so it can help the citizen in court?

[Platapus]

I would say that refusing a search would be an exercise in futility and would only serve to make the officer suspicious.


It might make them suspicious, but giving them permission to search your vehicle removes some of the protections you have. There are proper and appropriate procedures that the police need to follow. I find nothing objectionable with holding the police accountable for their own procedures.

I would never be rude or antagonistic to a police officer (I am always respectful) . But at the same time, I am not going to voluntarily waive my 4th amendment rights when there is no advantage to me.

Remember the six important words you need to respectfully ask a police officer: "Officer, am I free to go?"

If the answer is no, then you are under apprehension and there are rules and procedures and you have specific protections under the law.

If the answer is yes, you are not under apprehension. Anything you do/say/agree to is considered voluntary and you lose specific protections under the law.

If they refuse to give you an answer, respectfully ask again.

There are very few rules that prevent a citizen from voluntarily waiving any or all of their rights. Unfortunately, there are police officers who will strive to give you the impression you are under apprehension while you are not actually. Then anything you say or agree to is you voluntarily waiving your rights.

Once you voluntarily waive your rights, it is difficult to reclaim them.

[Stealhead]

But the police routinely record people during stops. Why is it OK for the police to have an audio record to help them in court, but a citizen is not allowed to record the same event so it can help the citizen in court?


Don't ask me:timeout:..... besides I am no legal expert I have no idea if you have to tell a cop that you are recoding/filming him I somewhat suspect not because if so people would be getting sued left and right for those youtube videos and it seems that this has not be occurring.

Honestly I have never thought to ask any of my friends the legality of the cops cameras of course those can serve more than one purpose they also are recording what the cops do and defendants have won based on police camera footage so the street goes both ways.Besides if a cop beat you or grossly violated the law I doubt they would make it inadmissible they used the camera footage filmed from across the street with the Rodney King beating.

@Wolfez you can still say "I have nothing to hide officer/sir/ma'am but I do not consent to searches".

The weed thing is just another attempt to get you to consent any time they ask for consent they lack probable cause and are trying to get your consent.It really is as simply as that.

[August]

How about a window sticker that says something along the lines of:

"Conversations with the driver of this vehicle are being recorded for quality assurance purposes."

[GoldenRivet]

How about a window sticker that says something along the lines of:

"Conversations with the driver of this vehicle are being recorded for quality assurance purposes."

My dad's home has cameras covering all entry doors and high traffic areas of the home. It records video and audio by motion activation and saves the "event" for later review.

The best option is to have a system that will upload "event" footage to a remote server every few minutes. This prevents the baddies from destroying or steeling the footage of them stealing your footage. The good thing about motion activated recording is that you can sift through the footage and delete what you dont want (dog walks through the room etc) and keep what you need (slip and fall, break in, etc) without having to deal with hours of nothing happening.

He even has the legal jargon on signs by the doors and actually framed on the walls in each room that contains a camera (For the protection of you, other guests and your hosts; Your activities while on this premises are subject to video and audio recordings) or something like that.

Now dont go thinking he is a nut... While this is his home... half of his residence is a bed and breakfast. and a fair amount of the property has been converted into an event center which hosts proms, weddings, business parties etc.

this spring i intend to get forward and rear recording dash cameras for our cars. and when i finally take the plunge into home ownership, there will be digital cameras recording every point of interest and high traffic area of my home too.

This day in age, you would be a fool not to invest in a security camera system. it is a wise investment, it deters petty crimes, and can offer you a perfect, unbiased witness in the event that you have to shoot an intruder or if something comes down to a your word against theirs situation... generally speaking, camera footage makes pretty damning evidence in a court room.

[Armistead]

Never consent to police searches, tell them to get a warrant. I always laugh watching "Cops" on TV, they ask for consent and people say "yes" and the cops pull out dope from the car. If you are a doper or they suspect it they may search or threaten you with a search dog, but they only have so many, so they seldom call them in...

Most states allow recording cops with video in public places, but many are cities/states aren't allowing he audio.

[GoldenRivet]

Thats the other thing - brings me to the point about these DUI checkpoints

completely unconstitutional - the police do not have the right to stop you and ask you if you have recently robbed a bank any more than they have the right to stop you and ask you if you are drunk.. there is no reasonable suspicion.