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Archive for Saturday, May 5, 2012

Appeals court says Lawrence officer violated Fourth Amendment in DUI case

May 5, 2012

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A Kansas Court of Appeals panel has ruled a Lawrence police officer overstepped the bounds of the Fourth Amendment when she stuck her foot under a garage door to confront and later arrest a suspect in his home in 2009.

The judges released their opinion Friday in the appeal of Troy E. Dugan’s DUI and traffic-related convictions, saying Officer Laurie Scott should have applied for a warrant the afternoon of Sept. 17, 2009, instead of placing her foot under Dugan’s closing garage door.

It tripped a safety mechanism causing the door to open, and Scott began investigating Dugan.

The appellate judges also ruled Douglas County Chief District Judge Robert Fairchild erred in denying a motion by Dugan’s defense attorney to suppress evidence Scott obtained after she stuck her foot under the garage door.

“Although the question might be closer than some, we do not share the district court’s tolerance for the governmental breach of a private residence and, therefore, reverse that ruling with directions the motion be granted,” the judges wrote in their opinion released Friday.

Scott was following Dugan’s sport-utility vehicle after a dispatcher put out his description, tag number, name and address following a rear-end collision earlier near downtown. Dugan was accused of leaving the scene of the crash in which no one was taken to the hospital.

Scott found an SUV matching that description and followed it until Dugan pulled into a driveway, activated an automatic garage door and pulled inside. Scott turned on her patrol car’s emergency lights in the driveway, and later got out of the car and placed her foot under the door.

The appellate judges ruled it did not qualify as a “hot pursuit,” which would have permitted Scott to enter the home without a warrant. She had not engaged emergency equipment while following the vehicle and “saw nothing suggesting any traffic violations” as she followed him.

According to the opinion, when officers interacted with him in the garage, they determined Dugan “displayed signs of intoxication.” He told officers he was involved in a rear-end collision earlier and admitted having “several beers.” He did poorly on field sobriety tests, but refused to take a breath test. After denying the motion to suppress, Fairchild eventually convicted him of felony DUI — because he had three prior convictions — and other misdemeanor traffic infractions.

But the appellate panel ordered that motion to suppress ruling be reversed and the case be sent back to the district court.

The Fourth Amendment protects against unreasonable searches and seizures.

“A citizen’s Fourth Amendment rights do not rise or fall on the schedules of government agents or their predilections for expediency,” the opinion states. “The framers intended judicially issued warrants as a check on just those inclinations and to preserve for the citizenry a sphere of privacy in their own homes against undue government intrusion. The Fourth Amendment has not yet fallen into such disrepair that it no longer serves that fundamental purpose in a case such as this.”

Douglas County District Attorney Charles Branson said Friday prosecutors were still reviewing the opinion and deciding how to proceed, including a possible appeal to the Kansas Supreme Court.

Comments

NOTcrusher 2 years, 5 months ago

Stupid judges.

Lately, they've had a habit of letting obvious crinimals go free.

Blame it on See Bilious!

Hugs!

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Monty Amick 2 years, 5 months ago

It sucks But that is the correct interpretation.

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DillonBarnes 2 years, 5 months ago

I can't fault the officer much, she made a quick decision, but I think the courts made the right decision. She should have pulled him over earlier.

A line has to be drawn.

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jafs 2 years, 5 months ago

I'll bet they'd be very glad.

This is exactly what the 4th amendment is about, and why officers have to obtain probable cause and warrants to enter and search one's house.

She could have pulled him over earlier - 4th amendment protections are weaker in cars than in houses - I'm not sure I think they should be, but that's a different question.

But having failed to do that, she should have gotten a warrant to enter his home.

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FarneyMac 2 years, 5 months ago

I think the 'framers' would have been frightened and confused by the concept of an automatic garage door opener, and wouldn't know what to make of it.

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Liberty275 2 years, 5 months ago

Automatic garage door openers were called "slaves" back then.

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doc1 2 years, 5 months ago

Dang that sucks. I bet it took awhile for them to decide on that one and then persecuted the officer to make the same decision in a very small window of opportunity.

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DillonBarnes 2 years, 5 months ago

How are they persecuting the officer? Are we not allowed to question an officer's decisions? I can understand she had to make a quick decision, and I don't think she should be punished for (and I don't think she will be), but that doesn't mean what she did should necessarily be held up in court.

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patkindle 2 years, 5 months ago

troy was lucky and skated on this one on a technicality, perhaps he learned his lesson, and cleaned up his act, if he didnt learn anything it willl be cuff city some time soon at least he wasnt trying to sell baby chicks that is what the city is all about

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DillonBarnes 2 years, 5 months ago

It's a sad day when the constitution is considered a "technicality."

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Anthony Mall 2 years, 5 months ago

this is a case that represents an officer attempting to do a job that requires split second thinking and judgement calls... I received a dui after a bad choice and the officer did her job professionally and given the circumstance was a pleasure to deal with... this individual got lucky!!!

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jafs 2 years, 5 months ago

I don't know why people keep talking about quick thinking and split second judgments - didn't she follow him for a while before he got to his house?

If so, she had plenty of time to pull him over before he got there - no split second decisions were necessary.

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Liberty275 2 years, 5 months ago

Good. Now give her 6 months off without pay and we'll see if she's so quick to violate the constitution again.

"It's a sad day when the constitution is considered a "technicality.""

Perfectly stated.

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jafs 2 years, 5 months ago

I would also note that he had 3 prior DUI convictions, according to the story.

So, he's not some sort of model citizen either, and shouldn't be drinking and driving.

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Pastor_Bedtime 2 years, 5 months ago

With multiple DUIs this person's vehicle should be confiscated and he should be prohibited from even owning one.

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Cant_have_it_both_ways 2 years, 5 months ago

People that cheat on their taxes should have their bank accounts confiscated and should be prohibited from having one.

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rukidingme 2 years, 5 months ago

I think the officer made the correct call. If she would have left went back to station and wrote up a search warrant (which is no easy process) and than tracked down a judge to sign off on it. When she would have returnd to the house thedriver would say he had been drinking in his house and his lawyer would had advised him to say the same thing. Just another exampe of a drunk getting off free and beating the system. Lets hope today he doesn't kill someone when he drive's drunk again because he will.

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jafs 2 years, 5 months ago

She should have pulled him over in the car before he got to the house - problem solved, and without violating his constitutional rights.

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DillonBarnes 2 years, 5 months ago

Are you suggesting that from now on officers simply follow people to their house before attempting to stop them?

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jafs 2 years, 5 months ago

Not completely clear.

Although it says she "followed it until Dugan pulled into a driveway".

That suggests there was time before he did that.

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jafs 2 years, 5 months ago

The 4th amendment isn't designed to protect the "innocent" - it's designed to limit the power of government.

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jafs 2 years, 5 months ago

She didn't even try to pull him over, according to the story.

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Bob Forer 2 years, 5 months ago

No need to slam the officer involved in the case. If she were dishonest, or out to violate the driver's constitutional rights, she would have pulled him over before he arrived home and fabricated a story claiming that he crossed the center line or otherwise committed a minor traffic violation

No, this was not a split second decision. But like some fourth amendment issues, the answer is far from a bright line. Heck, the district judge got it wrong, and he has a legal education and years of experience.

The cop did her job professionally and competently. She just happened to be wrong on a difficult fourth amendment issue. Leave her alone. she is a human being, and all we can expect is her honesty and best judgment, which I believe the public received on this one.

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jafs 2 years, 5 months ago

Not slamming the cop.

But, couldn't she legally have pulled him over simply because his vehicle matched the description?

I'm not sure how she can think that sticking her foot under the garage door is ok.

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Bob Forer 2 years, 5 months ago

My message was not specifically directed at you.

But before you question the cop's judgment, think about a couple of things:

1) The trial judge, with years of experience and legal training, and with briefs present to him and time to reflect, made the wrong call.

2) The cop's decision to put her foot under the closing door was split second. Apparently, the suspect was inside and had ignored the flashing lights. She was in the middle of the investigation and had to make a split second decision. It's easy to critique in hindsight from the cheap seats.

She may have made a mistake in not pulling the guy over based on the matching description. Impossible to know the answer without knowing all of the facts, which are not recited in the article. All you need is an articulable suspicion that a crime has been committed, per U.S. Supreme Court case of Terry v. Ohio.

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Liberty275 2 years, 5 months ago

"out to violate the driver's constitutional rights"

She did do it. With her own foot. Does that mean she thought she could ignore the constitution or are our police so poorly trained that they don't know we have rights guaranteed in the constitution. I don't believe either. I think she just let her human reflexes override her police training. Mistakes happen. I make them and I clean up those left by other people.

So you can argue with validity that she merely had a mental slip, and is not a bad cop in any sense of the phrase, but the constitution doesn't care why she violated the 4th amendment, only that she did. The evidence is tainted and can't be used.

Yes, cops are human, and maybe instead of laying her off a few months (as I did in my initial post, mostly lashing out at government in general) we should just make her re-test in the "things you can't do" part of the certification. I don't suspect she'll ever make the same or a similar mistake again.

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Bob Forer 2 years, 5 months ago

The judge got it wrong, and he had the benefit of legal briefs and time to reflect on his decision. Once the door started to close, she had to make a split second decision.

You obviously are not a lawyer, nor have you worked in law enforcement. Otherwise, you wouldn't be so quick to judge the cop's actions.

Continue to hate on cops if that's your outlook. just hope karma doesn't turn around and bite you in the behind should you ever need help from one.

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jafs 2 years, 5 months ago

From the story, it sounds as though she didn't turn on her lights until he had pulled into his driveway/garage, which means he was on his own property.

I'm not sure he has an obligation to let her into his garage at that point.

Or to stop his car in the driveway and let her search it/him.

Police, given the power they have, are prone to corruption and the abuse of that power, just like any other group with power. They also deal with stuff on the streets that may give them a skewed perspective, and they may not be that well educated about constitutional rights.

That's why we have those protections, right? So that those with power don't get carried away by it and abuse it.

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Liberty275 2 years, 5 months ago

"she had to make a split second decision. " She made the wrong one. It happens.

"judge the cop's actions." The officer violated a law she is sworn to uphold.

"blah blah blah" Yawn.

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equalaccessprivacy 2 years, 5 months ago

Doesn't Charles Branson just come off as a grandstander? Who can respect law enforcement ( including DAs) who do not revere and uphold the constitution above all else and thus hold themselves accountable to it? I pity anyone who has the misfortune of a scrape with the lawless crowd of movers and shakers who run Lawrence--even someone with a sad pattern of DUI's like the clown in this article. No one likes liars , especially when they are calling the shots."Just doing her job" is an incredibly poor excuse for the abuse of power. It's used way too often by people who prefer not to engage their brains before opening their mouths.

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Kendall Simmons 2 years, 5 months ago

What a silly comment.

Apparently you haven't actually read the Constitution since you were required to in high school. And you obviously haven't given any thought to what the various parts of it actually mean.

Give it a try sometime. You'll be quite surprised.

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equalaccessprivacy 2 years, 5 months ago

Just like the cop and judge in this story many people in this part of the country really seem to have a real problem seeing boundaries and respecting them. It leads to presumptuousness and disrespect--- even harassment and lawlessness-- beyond words. Presumptuous people just don't know how and when to mind their own business or when to stop. They go too far. So glad to be done with Kansas and to escape this crazy place half alive. For example I had a delivery guy recently who just grabbed my screen door right out of my hands to adjust it to remain open. Didn't bother to ask. I had not and would never approve his action.

Or the stinking LMH imaging tech who followed me into the women's room-- listen, blind miss, I'd far rather carry my own bags than put up with such presumptuous, patronizing crap! Yuck and double yuck! Stupid people who damage and disrespect others yet blindly assume they are being so helpful are the norm in Douglas County. Get a clue and keep your distance, folks, please. Ignorance is frightening. Don't wish it up in my face. Don't enjoy being screwed with. Stop messing with other people's belongings and persons in such an inconsiderate, inappropriate, and intrusive way.

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Kendall Simmons 2 years, 5 months ago

OK. So now that you've left Kansas, why are you still reading the Journal-World? All it's going to do is bring up bad feelings. Surely you're not a glutton for punishment, are you?

And, considering how much you disrespect everyone else, perhaps it's YOU who ought to get a clue? Perhaps it's YOU who ought to keep your distance from now on?

So have a nice life in whatever state you've moved to. But please leave Kansas behind...TRULY behind.

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gl0ck0wn3r 2 years, 5 months ago

Is there anything with which I can help you, equalaccess?

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jafs 2 years, 5 months ago

Yes.

But, if she's on his property without a warrant (and his driveway is part of his property), I don't think he has an obligation to let her search him or his car, house, etc. without a warrant.

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Liberty275 2 years, 5 months ago

In soviet america, citizen needs warrant to prevent search.

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Hudson Luce 2 years, 5 months ago

If the officer didn't have probable cause to stop the guy while driving, and didn't have it when he pulled into his driveway, she didn't have it when the car was in the garage, parked, with the front of the car not visually apparent, and the door coming down so low she had to stop it with her foot. It's a bad arrest, she shouldn't have done it, and the case shouldn't have been prosecuted. Game, set, and match...

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Bob Forer 2 years, 5 months ago

PC is not required. Just an articulable suspicion. Terry v. Ohio.

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Hudson Luce 2 years, 5 months ago

reasonable articulable suspicion, otherwise my comment stands as before.

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John Hamm 2 years, 5 months ago

Not "stupid judges" in this case. IF the officer (and she apparently did) have reason to suspect this was indeed the vehicle involved in the crash all she had to do was light him up! Once that was done there would have been "probably cause" to detain under suspicion of DUI even if it was NOT the vehicle involved in the hit and run. Plain and simple "bad Copsmanship" and "bad Judgemanship" on the local judge.

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jhawkinsf 2 years, 5 months ago

  1. If a person is less secure in his car than in his home (from police search and seizure), is a garage somewhere in the middle, a sort of grey area?
  2. Would it have made any difference if the garage detached?
  3. Would it have made any difference if the garage door were open?

Because it can be assumed that when the officer saw the garage door open and the car heading into the garage that the situation changed, her time to react changed from the time she was simply following the car on the streets, therefore the characterization of it being a split second decision might be more accurate.

Courts frequently have to deal with these hair splitting decisions. This time, the DUI suspect got lucky. With his record, let's hope that his next DUI isn't given after a fatal accident.

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jafs 2 years, 5 months ago

I'm not defending this guy, who clearly shouldn't be on the road if he can't stay sober and drive.

But, unless she only followed him for a very short time, she had plenty of time to pull him over long before he got to his garage - why didn't she?

Seems to me that fitting the description of a vehicle involved in a hit and run accident would be sufficient probable cause (or reasonable suspicion, or whatever the correct term is) to stop him that way.

I'd think that a garage fits with the house, and contains the same protections, regardless of attachment/detachment, but I don't know for sure.

It would be simpler, and perhaps better, in my view, for people to have the same 4th amendment protections in their cars, and I'm not sure I understand why they're weaker there, except for a very literal reading of the 4th amendment, which seems silly. They didn't have cars back then, so of course, they wouldn't list them.

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Liberty275 2 years, 5 months ago

I'm not sure it is different. Why do you think it is?

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jafs 2 years, 5 months ago

Well, the police can stop you in your car and search you/it without a warrant, which they can't do in your house, right?

Drunk driving checks are an example of that - they stop people randomly, without any particular reason to believe they're drinking, and check for that.

In order to do that if you're in your house, they'd need probable cause and a warrant.

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Liberty275 2 years, 5 months ago

They can stop you from using a public road, as in making you pull over, but I don't think they can search your car without your consent or a warrant. They can search you for their safety, but I'm not sure they can search your man-purse (if you carry one), although they can remove it temporarily from your possession, once again, for their safety.

Of course, it's easier to look into a car's window to see a cache of AKs and the drug dog on public property can get lots closer to a package of cocaine in a car's trunk than one in a basement.

As for the drunkard driving checks, you agree to that when you sign your driver's license.

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jafs 2 years, 5 months ago

Well, I'd have to do a bit of research, but last time I did, it seemed clear to me that our 4th amendment protections are much weaker in cars than in houses, or even walking down the street.

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ebyrdstarr 2 years, 5 months ago

Liberty, I don't want to get into all the intricacies right now, but, sadly, yes a car can be searched without consent and without a warrant. There are exceptions to the warrant requirement, one of which is exigent circumstances. So if a cop has probable cause (higher than reasonable suspicion, the standard for a Terry stop and pat down) combined with exigent circumstances (which the Kansas Supreme Court exists by virtue of the place to be searched being a car, which is mobile), the cop can search the car. There are also limited circumstances in which a cop can search incident to arresting a person.

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Liberty275 2 years, 5 months ago

Wikipedia. Take it or leave it.

"In United States v. Jones, 565 U. S. __ (2012), the Supreme Court ruled that a search for Fourth Amendment purposes also occurs when law enforcement trespasses on a person's property for information gathering purposes, even if that person had no reasonable expectation of privacy."

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volunteer 2 years, 5 months ago

At least this time the headline did not scream "Judge Fairchild Reversed Again" or whatever that was several months ago when the issue, I believe, was the precise wording of the jury instructions.

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pace 2 years, 5 months ago

Law should be precise and applied, not a reflection of emotion or media hype. They should think warrant not body jams. No one was in immediate danger and now the case against a dangerous driver is skewed.

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Bob Forer 2 years, 5 months ago

Warrant would have taken too long and the delay would have destroyed the case. And the law is never as precise and applied as you would like. That's why we have appellate courts, and frequent reversals of trial decisions.

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pace 2 years, 5 months ago

I agree the law is not a precise instrument, more nitpicky. I made a too strong a statement on that. The court decided correctly. There is reason for warrants to be required, to dismiss them as too time consuming is to turn your back on rights. People do have rights. I know a lot of the mentality is that for some people, other people should not have their rights protected, because of who they are, for any number of reasons. For me, to start denying rights based on reasons other than law is not a slippery slope it is a mudslide. We need good law, I certainly did not see in the story the urgent life or death issue. I don't blame the officer, I saw she had been tailing the guy and sees him slip behind a closing garage door, she made a small mistake. My guess is this will be one of many lessons about how important following procedures are in successful closing of cases.

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jafs 2 years, 5 months ago

I remember Justice Black answering a question about the bill of rights - he was asked if this didn't just make the police's job harder - he answered that's what it's supposed to do.

If she had pulled him over earlier, there wouldn't have been an issue, and he could have been prosecuted.

We seem to have given the police wider latitude and more power than I'd like already - I don't think we should continue in that direction.

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jafs 2 years, 5 months ago

It's not that easy to pigeonhole me - I have more complex views than that :-)

Yes, and they can use "exigent circumstances" too easily as well.

Too many warrantless searches too.

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jaywalker 2 years, 5 months ago

"to preserve for the citizenry a sphere of privacy in their own homes against undue government intrusion. "

Against UNDUE government intrusion. Sorry, but there was nothing "undue" here. And the moron still could have just entered his house and reached "base."

Still sayin' we need a Minister of Common Sense. 3 prior DUI's w/ a 4th in the act plus leaving the scene -- no legal favors for this bleepin' bleep.

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jafs 2 years, 5 months ago

He's not a model citizen.

But that's not the point of constitutional protections - we don't select whether or not they're "deserved" by individuals.

It's not a "legal favor" to hold the police to the standards set for their conduct.

She could and should have pulled him over before he got to his property - then there wouldn't have been an issue.

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jaywalker 2 years, 5 months ago

Model citizen? He's a freaking menace! And an innocent man, or at least a respectful, law abiding member of our society, doesn't close the door in the face of an officer with the rollers on in his driveway. I understand and respect the constitutional protections. I just don't believe his were breached. From the ruling:

“The framers intended judicially issued warrants as a check on just those inclinations and to preserve for the citizenry a sphere of privacy in their own homes against undue government intrusion. "

The framers did not intend a scofflaw to buy time by reaching "home base." This ain't Kick the Can. The "intrusion" wasn't "undue"; she had a repeat offender dead to rights and performed an act as innocuous as sticking a twig between a screen door and the jamb. And it's absolutely a "legal favor" to suppress evidence found in his car when the alternative was that this jerk would have used his "sphere of privacy" to destroy that evidence if left to his own devices.

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jafs 2 years, 5 months ago

Ok - he shouldn't be driving without an interlock device - I strongly support that.

And, that idea, that the "good people" will just co-operate, so any who don't must be "bad guys" is highly flawed, in my opinion.

If you read the 4th amendment, it says nothing about "undue intrusion" - it simply mentions unreasonable searches, the need for probable cause and warrants, etc.

These are all judgment calls, of course, but in my view, the police already have more latitude than I am completely comfortable with, and allowing them to enter private property (the driveway), stick their feet under a garage door, and enter and search somebody without a warrant seems unreasonable to me.

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jaywalker 2 years, 5 months ago

"And, that idea, that the "good people" will just co-operate, so any who don't must be "bad guys" is highly flawed, in my opinion."

Rollers in your driveway. You just close the door on 'em?

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures"

We'll just have to disagree. I don't see what transpired as "unreasonable" in any sense. He was the guy. They had him. Why she didn't pull him over IF she actually had that chance (not enough detail to accurately opine on that) is a good question. But in my opinion, a repeat DUI offender is akin to a loaded weapon exposed to the populace. His immediate apprehension should be paramount.

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ebyrdstarr 2 years, 5 months ago

It's not clear that this guy ever saw that she turned on her list because she didn't do so until after he'd pulled into his garage.

But the real question is this: why not just go get a darn warrant? She had him. Matched his car and tag to the accident description. Followed him to the address of the car registration. It was 1 pm, broad daylight. Another officer was on scene with her. So why couldn't the two of them radio in their information, maybe even see if they could get someone at the accident scene to id the guy from his DL photo, and apply for a warrant? At that time of day, it wouldn't have taken long at all and they could have watched the house to make sure he didn't leave.

Why are so many people unwilling to hold police to the standards the Constitution sets for them?

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jafs 2 years, 5 months ago

It's the "law and order" thing, I think.

Especially when they get the right guy, and then have to let them go afterwards.

Why didn't she just pull him over before he got to his house? Seems like that wouldn't create the same constitutional issue to me.

With your version, they might get him for leaving the scene, but not for DUI, which bothers some people.

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jafs 2 years, 5 months ago

It doesn't matter what I would do, or not do.

You can't judge somebody guilty because they don't allow the police to search their house without a warrant.

We didn't know he was "the guy" until after the search - he could easily not have been. That's the problem - weakening 4th amendment rights/protections weakens them for everybody.

It's a difficult question, because the concrete is weighed against the abstract - "if you don't have anything to hide, why not just let the police do whatever they want?"

The answer is that the power of the state is very subject to abuse, and that our constitutional protections are a check on that abuse.

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jaywalker 2 years, 5 months ago

"You can't judge somebody guilty because they don't allow the police to search their house without a warrant."

Sure can't. But then that wasn't my argument.

"We didn't know he was "the guy" until after the search -"

False. Unless the officer's blind, the tag would have been clearly visible when she pulled into the driveway.

And I'm not arguing in any way that the police should be able to do anything they want. Merely that what she did in order to secure this criminal was not undue or unreasonable.

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jafs 2 years, 5 months ago

We didn't know anything about a DUI until she had him take a breathalyzer, right?

She may have known he was the leaving the scene of an accident guy, if she had his tag.

She may not have had the tag, but simply a description of the car leaving the scene.

And, she would have easily been able to get the tag before he was in the driveway if she'd been following him for a little while.

If she had stopped him while driving on the streets because his car matched the description, seen/smelled that he might have been intoxicated, given him a breathalyzer, and arrested him for DUI, later proved he had left the scene, and they had prosecuted him, that would have been reasonable to me.

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jaywalker 2 years, 5 months ago

Jesse,

Seems to me, and we're certainly lacking factual exactness here, that since the dispatcher had put out a full description that included the tag, while she may have spotted the vehicle and followed him for an undetermined distance, she must not have been close enough to read the tag until she got into the driveway or shortly before. Seems logical she's lighting him up the second she confirms it's the right car by the tag.

Let me ask you, any clue what "emergency equipment" entails? Been naggin' me since I read it.

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jaywalker 2 years, 5 months ago

Makes sense, was over-thinking it.

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Liberty275 2 years, 5 months ago

"no legal favors for this bleepin' bleep"

"nor deny to any person within its jurisdiction the equal protection of the laws." (from a source)

Four-time drunk driving bleeping bleep or not, he is entitled to the same legal favors (aka protections) as everyone else. On the day that is no longer true, America ceases to exist.

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pace 2 years, 5 months ago

Home, house, garage, a lot of difference between knocking on a door and putting your foot through it.

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oldvet 2 years, 5 months ago

A police officer has but seconds to choose the course of action they must take...

And that course of action will be debated and decided 6 years later by a 5-4 vote in the Supreme Court.

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jafs 2 years, 5 months ago

Not at all supported by the story, which states that she followed him until he got into his driveway.

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jafs 2 years, 5 months ago

They might not have had all of that - they might just have had a general description of the car - make/model/color.

If they had his tag, then I agree there might be some sort of probable cause.

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jaywalker 2 years, 5 months ago

"a dispatcher put out his description, tag number, name and address following a rear-end collision earlier near downtown"

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jafs 2 years, 5 months ago

Thanks for pointing that out - I missed it. Then there's clearly no reason not to get a warrant, if they had all of that information, right?

They know where he lives, etc.

Simply get the warrant, then enter his property and search him.

Or, given all of that info, stopping him on the street while driving, and questioning him there seems reasonable as well. If he seems intoxicated, then get a breathalyzer test.

There's just no need for this officer to act the way she did - there were any number of other options that wouldn't have compromised his rights.

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jaywalker 2 years, 5 months ago

"If they had his tag, then I agree there might be some sort of probable cause."

Playing Romney, are we?

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jafs 2 years, 5 months ago

No, that comment was from before you pointed out they had it.

But, it's probable cause for a warrant, not for a warrantless search of his property.

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jaywalker 2 years, 5 months ago

Sorry, but that wasn't autie's point nor what you were acquiescing in response to such. Hence the flip flop.
Police don't need a warrant to search a vehicle if they have probable cause, which they had. And like autie correctly stated, allowing this jerk to circumvent the Law by using the law is the epitome of good intentions running afoul of common sense.

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jafs 2 years, 5 months ago

I've already said numerous times that she could have pulled him over while driving without an issue, even without the tag number.

As far as I know, a simple match of the vehicle description would suffice there, since 4th amendment protections are weaker in cars.

Once he's on his own property, the situation changes, and she should have a warrant.

I didn't change my views at all - they've been consistent all along - 4th amendment protections are stronger on your property than while driving on the street.

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jaywalker 2 years, 5 months ago

Then you missed autie's point. And the situation should not change just because he "made it home." This is what I've been arguing. She had him. She knew it was him. He was the guilty party. Granting him time to clean himself and any evidence up is a complete suspension of common sense.

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ebyrdstarr 2 years, 5 months ago

Granting her the right to enter his home and arrest him without a search warrant is a suspension of the 4th Amendment. I know which suspension I am more comfortable with.

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jafs 2 years, 5 months ago

As I said, it's difficult because a concrete thing is being compared to a more abstract one.

In this case, she had the right guy (although she didn't know he was DUI until after a breathalyzer).

But, constitutional protections exist to limit the power of the state (which is more abstract), because it's easily abused.

You do know that police are often wrong, even if they're convinced somebody's guilty, right? Do we really want to give them the ability to circumvent the 4th amendment based on their opinions?

She should have pulled him over while driving - I have no idea why she didn't do that. Then everybody's happy - they get the bad guy and they don't violate the 4th amendment.

Although, I'm not sure I'm completely comfortable with the weakened 4th amendment protections while driving.

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jaywalker 2 years, 5 months ago

"Do we really want to give them the ability to circumvent the 4th amendment based on their opinions?"

There was no circumvention of the 4th amendment. She stopped a door from closing. From that point the guy still could have entered his home and refused to speak with them. Nor was it opinion. At that point she had the correct car w/ the correct tag.

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jafs 2 years, 5 months ago

They were already on his property - according to a link above, 4th amendment rights obtain on his property, even if he's not inside his house.

So, sticking her foot under the garage door to stop it from closing was a violation of the 4th amendment.

This is essentially what the appeals court judge said, as well.

Yes, for god's sake - I've already said they happened to be right this time. But they're not always, or not even usually right - they're often wrong.

Once you open the door to weakening the protections, it's rather difficult to close it again, and the rationale for doing so gets easier and easier.

Soon, you start to think it's ok if the cops suspect somebody, even without evidence.

Trials exist to determine guilt - concluding that somebody's guilty before that, and basing police procedure on that determination is a bit backwards.

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jaywalker 2 years, 5 months ago

"But they're not always, or not even usually right - they're often wrong."

Eaaasy, Tex! There have to be nearly a million police, and you rarely hear of the thousands of positives and jobs-well-done that occur every single day. Overwhelmingly, news involving police that finds the public eyes and ears is focused on the negative, scandalous, and corrupt. Don't go jumping the shark! (o;

"Once you open the door to weakening the protections, it's rather difficult to close it again, and the rationale for doing so gets easier and easier. Soon, you start to think it's ok if the cops suspect somebody, even without evidence."

The slippery slope argument always comes out when it comes to the Constitution. I truly wonder if there's a solid example of that kind of dissolution ever taking place.

I'm just arguing for common sense. The police might have the most difficult job there is in this country. But there are incidents of excess and corruption and stupidity within, no doubt.
I just hate to see people like this get any kind of break whatsoever. I understand how it protects all of us and all that good stuff. But things like sticking a foot under a garage door negating evidence is, to quote autie again, where good intentions run afoul of common sense.

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jafs 2 years, 5 months ago

Our 4th amendment protections have already been significantly weakened - more warrantless searches are ok now, and the SC just ruled that hearing a toilet flush constitutes "exigent circumstances".

That means that if they knock on your door, suspect you of having drugs, and hear a toilet flush, they can break down your door and search your house.

Previously, they had to get a warrant, then exigent circumstances were a reason for a warrantless search, but that meant things like somebody in danger, then it got expanded to the above. That's an example of the slide.

Is that ok with you?

They're weaker in cars than in houses.

Police can lie to suspects in order to obtain confessions.

The Patriot Act is patently unconstitutional to my mind, and yet it's there, and being used in all sorts of ways that deny protections to folks, even American citizens.

I'd say we've already gone too far in that direction, and that we should be reversing these trends, and certainly not going farther that way.

I didn't mean to suggest they were corrupt, simply that they're not right just because they believe something. They're human, and have their own biases and flaws.

The right way for this to go is for the police to gather evidence first (without violating anybody's rights), then bring them to trial, and then determine guilt.

You can't do it the other way around - I know he's guilty, so I'll just violate his rights.

What happens when they're wrong, and it was your house they broke into?

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jaywalker 2 years, 5 months ago

"Is that ok with you?"

Yes, it is. Though hearing a toilet flush through a closed home door is virtually impossible.

"They're weaker in cars than in houses."

No, they're not.

"Police can lie to suspects in order to obtain confessions."

Good. And rightfully so. Considering the fact that virtually every criminal will lie incessantly, even when confronted with damning evidence, the police should be able to mess w/ the suspects' mind in order to seek the truth. They just supposed to sit back and "converse" with these people like they're altar boys?

" simply that they're not right just because they believe something. They're human, and have their own biases and flaws."

These are our highly trained protectors. Nobody's perfect, but with reasonable knowledge of a situation I'm confident they'll make the right choices more often that not.

"What happens when they're wrong, and it was your house they broke into?"

I highly doubt that's ever going to happen. The odds are probably similar to winning the lottery.

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verity 2 years, 5 months ago

Pretty much everything being discussed here is irrelevant except for the fact that the police officer searched without a warrant. Any one of us might have done the same thing in the circumstances, but that doesn't make it right. We can't go about undermining constitutional and civil rights even if it means letting a criminal go free. If we do that, then everyone of us is at risk for it happening to us.

It may be obvious that a person committed a crime, but if we allow evidence that was gotten illegally to be used, then there is no reason for Law Enforcement to follow the laws. Again---it could be used against you.

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pace 2 years, 5 months ago

I am confused too, is there any story that haters can't work in their emotions about President Obama. Must we pass a special law or get a restraining order to keep drooling rambling rants from trolls about President Obama interrupting any public conversation?

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ebyrdstarr 2 years, 5 months ago

It's trespassing to go into a house, even if the owner has not explicitly said you can't come in.

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ebyrdstarr 2 years, 5 months ago

Do you honestly think that this means homes can be entered at will by anyone off the street unless there is a sign posted saying "No trespassing?" A person is not "privileged" to enter a private home and needs no specific, additional notice to that effect.

Trust me, it is trespassing to enter a home without permission, even if the lack of permission is not explicitly stated.

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ebyrdstarr 2 years, 5 months ago

Trespassing occurs at the entry point. It doesn't only become trespassing when the owner spots you and protests. An officer should definitely know she is not authorized or privileged to enter a private home.

Your list of options seemed to include only explicit notice, like a fence, a sign, or a verbal command seemed to leave out the basic point that private property automatically carries the lack of permission.

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ebyrdstarr 2 years, 5 months ago

You're leaving out a key detail of this case. The man had closed the garage door, but the officer interrupted the closing. There are cases on this saying that cops can't prevent a homeowner from closing a door.

Of course all these cases would be fact- specific. Open areas of the home, like a driveway or sidewalk are generally available to people to walk on without risk of trespassing without more notice. But it's all within reason. My back yard isn't fenced and the patio furniture is pretty visible from the street. I don't have a sign, but you're still trespassing if you come sit on my hammock without my express permission.

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ebyrdstarr 2 years, 5 months ago

This is where I said reasonableness comes into play for each factual scenario. Of course I don't object to the Fed Ex guy because reasonable people expect that delivering packages and knocking on doors are ok unless otherwise notified. Reasonable people, though, also understand that using someone else's unfenced yard is not.

Just as a reasonable person knows, or should know, they're in the wrong when they use any kind of force to prevent a homeowner from shutting them out.

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tbaker 2 years, 5 months ago

The practical reaction to this is to gripe about this bogus technicality, but I'm glad the court erred on the side of our civil liberties.

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camillia 2 years, 5 months ago

Without arguing with others about the 4th amendment...why in the H.E. double hockey sticks does this guy still have any driving privileges? Where was the judge when Dugan was in court for those?? Obviously the system had already failed way before this incident.

And as for the incident, yes Officer Scott broke the 4th amendment. Im sure it was a mistake but she did it and now she must face the consequence just as anyone else who makes a legal mistake. Her actions could possibly set herself up for old cases to be re-opened if others come forward saying she violated their 4th amendment right. Now Im sure my next statement is going to take flack but this specific officer has somewhat of a bad rep if you search her name online. Not saying shes automatically guilty bc of her reputation but its going to add fuel to the fire for this DUI offender. (btw I HATE people who commit multiple DUI's but in this case the officer just botched the case)

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pace 2 years, 5 months ago

I hate drunk drivers, they have killed too many. Even if they just wreck your car with no injuries, they think insurance will handle it. A lot of people can not afford to fix a car or go buy another.

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Gecko 2 years, 5 months ago

HELPS "just a SMIDGEN" that his GIRLFRIEND is a Lawrence Attorney, no?

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