Artfully Retaining Control while Deflecting Field Interrogation Tactics

[Weston White]

To those that find either of the following projects worthwhile, I would like to request assistance in compiling and updating a helpful document for individuals to keep readily available as a binder reference to use for any contact with law enforcement personnel (as a printable PDF.) I am aiming for this to be a two-part project (the second one will be addressed within its own thread); with the first being legitimate reference material and the second a legislative proposal to aid in drafting mandated accountability and use of force actions by law enforcement personnel.

The primary context of what I am personally addressing is within the jurisdiction of the Ninth District states, namely, California—further noting that while I do not personally agree with many of the decided aspects being covered herein, the point of this project is to provide accurate and reliable information that will sustain one’s defense from abusive police tactics, at the very least in a court of law (however, many cases quoted to are outside of the Ninth Circuit, but several of those are also referenced within the decisions of USSC cases, still the remainder may serve as persuasive authorities.)



Artfully Retaining Control while Deflecting Field Interrogation Tactics

Downloadable PDF -- Beta Edition: One (http://www.defendindependence.us/global_cloud/docs/ARCDFIT.pdf)

Table of Contents

INTRODUCTION (http://www.ronpaulforums.com/showthread.php?452524-Artfully-Retaining-Control-while-Deflecting-Field-Interrogation-Tactics&p=5537816&viewfull=1#post5537779)

SPECIAL CONSIDERATIONS (http://www.ronpaulforums.com/showthread.php?452524-Artfully-Retaining-Control-while-Deflecting-Field-Interrogation-Tactics&p=5537780&viewfull=1#post5537780)

BEING DETAINED VS. ARRESTED (http://www.ronpaulforums.com/showthread.php?452524-Artfully-Retaining-Control-while-Deflecting-Field-Interrogation-Tactics&p=5537782&viewfull=1#post5537782)

TERRY STOPS (http://www.ronpaulforums.com/showthread.php?452524-Artfully-Retaining-Control-while-Deflecting-Field-Interrogation-Tactics&p=5537783&viewfull=1#post5537783)

TRAFFIC STOPS (http://www.ronpaulforums.com/showthread.php?452524-Artfully-Retaining-Control-while-Deflecting-Field-Interrogation-Tactics&p=5537784&viewfull=1#post5537784)

GROUNDLESS AND UNLAWFUL ARRESTS (http://www.ronpaulforums.com/showthread.php?452524-Artfully-Retaining-Control-while-Deflecting-Field-Interrogation-Tactics&p=5537785&viewfull=1#post5537785)

RESISTING UNLAWFUL ARRESTS (http://www.ronpaulforums.com/showthread.php?452524-Artfully-Retaining-Control-while-Deflecting-Field-Interrogation-Tactics&p=5537787&viewfull=1#post5537787)
--QUOTATIONS CONTINUED—RESISTING UNLAWFUL ARRESTS (http://www.ronpaulforums.com/showthread.php?452524-Artfully-Retaining-Control-while-Deflecting-Field-Interrogation-Tactics&p=5537816&viewfull=1#post5537816)

SEARCH INCIDENT TO LAWFUL ARREST (http://www.ronpaulforums.com/showthread.php?452524-Artfully-Retaining-Control-while-Deflecting-Field-Interrogation-Tactics&p=5537788&viewfull=1#post5537788)

WARRANTLESS SEARCH OR SEIZURE DOCTRINES (http://www.ronpaulforums.com/showthread.php?452524-Artfully-Retaining-Control-while-Deflecting-Field-Interrogation-Tactics&p=5537791&viewfull=1#post5537791)

UNDERSTANDING YOUR MIRANDA WARNING (http://www.ronpaulforums.com/showthread.php?452524-Artfully-Retaining-Control-while-Deflecting-Field-Interrogation-Tactics&p=5537795&viewfull=1#post5537795)

LIMITED EXEMPTIONS FROM DISCLOSURE, DISCOVERY, OR TESTIMONY (http://www.ronpaulforums.com/showthread.php?452524-Artfully-Retaining-Control-while-Deflecting-Field-Interrogation-Tactics&p=5537797&viewfull=1#post5537797)

PUBLIC SPEECH: THE TIME, PLACE, AND MANNER RULE (http://www.ronpaulforums.com/showthread.php?452524-Artfully-Retaining-Control-while-Deflecting-Field-Interrogation-Tactics&p=5537799&viewfull=1#post5537799)

SPEECH PROTECTED EXCLUSIONS (http://www.ronpaulforums.com/showthread.php?452524-Artfully-Retaining-Control-while-Deflecting-Field-Interrogation-Tactics&p=5537801&viewfull=1#post5537801)

UNLAWFUL ASSEMBLIES—California Penal Codes (CPC) §§ 407, 408, and 409 (http://www.ronpaulforums.com/showthread.php?452524-Artfully-Retaining-Control-while-Deflecting-Field-Interrogation-Tactics&p=5537804&viewfull=1#post5537804)

CITIZEN’S ARREST—California Penal Code (CPC) § 837 (http://www.ronpaulforums.com/showthread.php?452524-Artfully-Retaining-Control-while-Deflecting-Field-Interrogation-Tactics&p=5537807&viewfull=1#post5537807)

POSSESSING FIREARMS WHILE IN CALIFORNIA (http://www.ronpaulforums.com/showthread.php?452524-Artfully-Retaining-Control-while-Deflecting-Field-Interrogation-Tactics&p=5537809&viewfull=1#post5537809)

MAKING PRA AND FOIA REQUESTS (http://www.ronpaulforums.com/showthread.php?452524-Artfully-Retaining-Control-while-Deflecting-Field-Interrogation-Tactics&p=5537811&viewfull=1#post5537811)

RESERVED 2 (http://www.ronpaulforums.com/showthread.php?452524-Artfully-Retaining-Control-while-Deflecting-Field-Interrogation-Tactics&p=5537813&viewfull=1#post5537813)
RESERVED 3 (http://www.ronpaulforums.com/showthread.php?452524-Artfully-Retaining-Control-while-Deflecting-Field-Interrogation-Tactics&p=5537815&viewfull=1#post5537815)

[Weston White]

INTRODUCTION

The content of this article is directed primarily at California residents and its surrounding Ninth Circuit states or U.S. possessions (including: Alaska, Arizona, Guam, Hawaii, Idaho, Montana, Nevada, Northern Mariana Islands, Oregon, and Washington). Its context, overall, relates to both traffic and pedestrian stops by law enforcement personnel while in the public.

[Weston White]

SPECIAL CONSIDERATIONS

In actuality, it is a misnomer to assert an individual’s “constitutional rights”. The overt realization being that such rights, although having been numerated within our Bill of Rights, are as a fact “fundamental rights” that are immutable, meaning they are rights we would possess regardless if a Bill of Rights had been ratified or not, regardless of the Fourteenth Amendment, and regardless if one’s own state recognizes our U.S. Constitution as its most supreme law—this point was thoroughly debated amongst the Federalist and Anti-Federalists during America’s conversion from a confederacy to a common law, constitutional republic. As a citizen of the United States of America, such fundamental rights are in-fact your Creator granted birthrights. On the matter of showing one’s patriotism, no higher display is more apparent than speaking in grand fervency of your inalienable rights as an American through the full force of your every breath.

With regards to conversing with law enforcement personnel, there is a cold-hard-reality that the general populace is purposely left ignorant of, which is that law enforcement personnel are trained to deceive, to connive, to mislead or otherwise provide a false sense of trustfulness, including lying outright to your face, betraying your gained trust, and providing you with false facts; to which they may do with impunity and without professional ramification or personal liability—that is so long as those so very immoral, unethical practices do not dare crossover into the safe and stringent confines of their wondrous “blue wall” (i.e., Blue Code of Silence.)

Law enforcement officers receive specialized training on methods to deceptively befriend those they make contact with. Don’t permit yourself the inconvenience of being misled by this shallow tactic; without apparent concern for your personal feelings, they seek to kindly extract information for which to further their “investigation”, or to “in-field” you (e.g., conduct a general interrogation.)

This is not to mean that you should be impolite, verbally hostile, or physically aggressive toward law enforcement officers, simply that you should remain strictly businesslike (e.g., complementary in the content, or in the extreme, matter-of-factly), such as you likely would toward a waitress at an unfamiliar café, while you might make generalities and small-talk without getting too personal, still at the end of the transaction they are expecting you to kindly pay your bill and perhaps leave them a tip—which is not to mean that you should ever tip or bribe law enforcement officers. It is best to follow a succinct maxim, such as: be personable, but neither allow it to nor make it become, personal.

Setting aside any anarchist points of view for the moment, simply, think of your contact with law enforcement personnel as a business transaction. Do not get caught up in the whole aspect of who is right and wrong, rather, focus instead on clarification and documentation. Come to know and understand why you were stopped, note (as applicable): the precise location; flow of traffic; visibility barriers; traffic or public sign types, positions, and locations; identifiable landmarks; video cameras or CCTV networks; date and time; weather and lighting conditions; the causation for initiating contact; incident, case, or call-log numbers; allegations or criminal charges; on-scene officer’s names, badge numbers, and agencies; participating law enforcement departments (including emergency or fire services); cooperating witness names and contact numbers; the general step-by-step rundown from start to end of the entire incident, including all noteworthy actions taken, and statements, signals, motions, or commands made by all actively involved law enforcement personnel (including how each one was honestly interpreted by you, including your initial and following reactions, e.g., complied, confused, contradictory, embarrassed, offended, shocked); etc.

Then after finally satisfying this imperative aspect, if you would like to, you may certainly inform the officer as to your concerns over the justness of their stop and the overall enforcement action—keeping in mind not to speak in specifics, but only in generalities, and that the case may very well be that the law enforcement officer(s) may simply have no desire to listen to you voice your concerns, regardless of how valid your concerns may actually be.

Law enforcement officers are trained to view their contacts one of two ways, compliant and non-compliant, and if you are non-compliant they peg you a one step-away from being combative, and the moment you are viewed as combative you become justifiably subject to their ‘use of force’ decrees.

It is imperative to realize that, similarly as to a physician performing medical procedures upon a person against one’s consent is to commit an unlawful act of assault against their patient, a groundless arrest—specifically by law enforcement personnel—is also to commit an act of unlawful assault against the person being taken into custody.

[Weston White]

BEING DETAINED VS. ARRESTED

Under the Terry ruling, a law enforcement officer may stop and detain a person based upon the measure of reasonable suspicion. And, if that officer reasonably suspects the person being detained is both armed and dangerous—further noting the use of a conditional ‘and’ qualifier within the context of being both ‘armed and dangerous’; as ‘and’ does not mean ‘or’, ‘shall’ does not mean ‘may’, and ‘if’ does not mean ‘is’—they may also frisk him or her for concealed weapons—this including conducting a ‘stop and frisk’ pat-down of the individual’s outer garments.

Providing just circumstances, an individual contacted by law enforcement personnel may be detained or arrested, cited and released; arrested, processed, and released on citation or booked into jail; or stopped or detained, frisked, and released or arrested. However, law enforcement personnel are statutorily obligated to arrest on felony charges and for outstanding felony warrants (see: CPC § 821), while they may only cite-out on infractions and misdemeanors, with exception to misdemeanors having been committed in their presence or that are still ongoing upon their arrival, in such instances they may opt to arrest without first obtaining an arrest warrant.

Law enforcement personnel frequently inform individuals they have handcuffed that they are not under arrest, but are being detained. However, case law has established that an ‘arrest’ has been made if the individual has been (1) handcuffed, (2) confined to the inside of a police vehicle, or (3) has been given the impression or realization that their freedom of movement is being restricted by the officer’s physical actions or verbal commands.

Legally, there is a distinction between a ‘stop’ and an ‘arrest’ (i.e., a seizure of an individual), and between a ‘frisk’ and a ‘search’. Being stopped by law enforcement personnel falls under the classification of a show of authority, which is communicative in form, while being seized falls under the classification of a show of force, which is physical in form. In general the former is associated with being detained and the latter with being arrested. In either case law enforcement personnel will expect you to submit to their authority, understand that you are either being detained or seized, and cooperate with their verbal commands or visual signals.

Generally, unless male law enforcement personnel have a reasonable basis to believe that a female being contacted is unlawfully armed with weapons (i.e., being both armed and dangerous), or armed with weapons while being taken into custody, they will require female law enforcement personnel to conduct a physical pat-down or search in their place; however, this rule does not apply to female law enforcement personnel making contact with male individuals.

A pat-down or frisk is conducted by feeling along the individual’s outer clothing, if an item of interest is felt, law enforcement personnel may then move inside that article of clothing to retrieve the object for closer inspection. During this process if anything unlawful is discovered it establishes them the probable cause to arrest that individual and/or seize that property.

Terry stops, investigatory stops or detentions, or being detained, may also include, at the reasonable discretion of law enforcement personnel, the use of nonintrusive search procedures such as computer database searches, metal detectors, drug-sniffing dogs, photographs, in-field witness or victim identification, etc.

The timeframe of reasonableness for being detained by law enforcement personnel is generally limited twenty-minutes of total contact; however, this timeframe may be further extended by fifteen-minutes to verify information, confirm that court orders are on file, obtain an emergency protective order, arrest (Ramey) or search warrant, etc.

Distinctions between search and seizures follow the doctrine of probable cause under the Fourth Amendment, while stop and frisks follow a lower standard of articulable reasonableness. Constitutionally established probable cause pertains to bona fide arrests, searches, and seizures of an individual or their private property. If a stop and frisk gives rise to establishing the probable cause to believe that a detainee has committed a crime, then the law enforcement officer acquires the legal authority necessary to make a formal arrest and conduct a search of the individual, including the surrounding area immediately leading to their arrest.

With exception only to established exemptions, as given to relative circumstances, search warrants are required to make searches and seizures ‘reasonable’. Fourth Amendment protections extent to the recording of oral statements in addition to the seizure of tangible objects; and additionally, intends to protect persons as opposed to places. Katz v. United States, 389 U.S. 347 (1967).

The Fourth Amendment does not intend to prohibit the government’s receipt of contraband, information, or evidence obtained through the actions or reporting of third-parties (regardless if personal confidence was betrayed in the process) without a warrant. United States v. Jacobsen, 466 U.S. 109 (1984), United States v. Miller, 425 U. S. 435 (1976), et al.

In United States v. Sokolow, 490 U.S. 1 (1989), the Court upheld that police have the power to detain, question, and investigate suspected drug couriers (e.g., the Drug Enforcement Agency (DEA) had developed in the 1980’ controversial “drug courier profiles” that provide law enforcement personnel with the necessary reasonable basis.)

In Alabama v. White, 496 U.S. 325 (1990), the Court upheld that an anonymous tip leading police to a specific vehicle and location containing narcotics, justified the use of a Terry stop by law enforcement personnel and subsequent arrest of the driver for possession; concluding that the corroboration of the anonymous tip sufficiently justified the investigatory detainment that ultimately led to the arrest of the driver and the seizure of the narcotics.

Favorably, the Court has since overturned the above case in Florida v. J. L., 529 U.S. 266, (2000), finding that an anonymous tip identifying an individual carrying a firearm, does not on that basis alone sufficiently justify law enforcement personnel to conduct a stop and frisk; concluding that the anonymous tip, providing descriptive information of an armed individual at a public bus stop lacked sufficient reliability to afford a reasonable basis for a Terry stop. The Court further stated that an accurate description of another, including their attributes and location in itself does not afford an anonymous tipster awareness of their private criminal ventures. Additionally, the Court vacated two other cases that held similar fact patterns: Morrison v. Ohio, 529 U.S. 1050 (2000) [Pertaining to an anonymous informant advising of an armed male that was walking down a street, the appellate upheld the subsequent Terry stop and arrest due to the consistency of the details provided by the informant.] and Williams v. Wisconsin, 529 U.S. 1050 (2000) [The Wisconsin Supreme Court had found that an anonymous tip of drug dealers parked nearby the tipster in a vehicle provided to law enforcement personnel provided them the reasonability to justify a Terry stop by police several minutes later, even though the police observed no illegal conduct themselves.].


Any combination of the following provides legal justification for stopping an individual:
Appears to be out of place or around an area at an inappropriate time;
Appears to be trespassing or loitering; or wondering about without purpose;
Is acting oddly or strangely; or appears to be emotional, fearful, or angry; or intoxicated;
Matches the description of a subject listed on a wanted flyer or Daily Crime Bulletin (DCB);
Is present in an established high-crime area (not sufficient on its own or with loitering);
Is present within the area of a police crime-scene;
Is fleeing from an area; or engaging in furtive movements.
Frisk, pat-downs are legally justified under the following combination of circumstances:
A consideration to an individual’s dishonesty, evasiveness, or attempts to flee;
A consideration to the number of individuals or their physical size, in conjunction with their behavior, emotional state, or intimidating presence;
A consideration to the current time and locality;
Law enforcement personnel are alone or outnumbered and their backup has not arrived;
There is a reasonable concern for the safety of law enforcement personnel or others that an individual is both armed and dangerous;
There is reasonable suspicion that an individual is committing a crime, has just committed a crime, or is about to commit a crime.

[Weston White]

TERRY STOPS

Law enforcement personnel may stop (or seize) an individual and frisk—known as a ‘stop and frisk’—them without warrant or ‘probable cause’ so long that the officer reasonably infers that the person is presently (1) armed, (2) dangerous, and (3) is in the commission of a crime, or has either just committed or is about to commit a criminal act. Terry stops are circumstantial in nature.

The distinction between the Terry standard and probable cause for a warrant is that the former only intends to function as a preventative crime fighting tool and moreover to aid in protecting and ensuring the safety of law enforcement officers and the latter for obtaining evidence proving criminality, Terry v. Ohio, 392 U.S. 1 (1968). Terry stops extend to vehicular traffic stops conducted by law enforcement personnel, Arizona v. Johnson, 07-1122 (2009).

An outer clothing frisk or pat-down (i.e., a ‘surface search’ or ‘Terry frisk’) conducted by law enforcement personnel for weapons must be based upon “specific and articulable facts” (i.e., the law enforcement officer must be capable of intelligently enunciating their honest reasoning or inference to justify the personal intrusion upon the individual to be searched.) Mere good faith beliefs, gut feelings, hunches, intuits, precognitions, subjective emotionalism, unreasoned fears, etc. that are expressed or experienced by law enforcement personnel do not rise to the legal justification for permitting such searches or seizures.

To infer is to deduce something which is based upon a known fact, making it more likely than not to be true (e.g., in observing condensation forming around the external portion of a cup, one may infer that it contains a cold beverage; in observing an individual drinking from a circular-shaped brown paper bag, one may infer they are drinking from a beer can concealed within; etc.), Beck v. Ohio, 379 U.S. 89 (1964).

Accordingly, the Fourth Amendment is based upon searches or seizures that are unreasonable; thusly, so long as the search or seizure has been afforded reasonable justification, then respectively no constitutional violations have occurred.

The reasonableness of a search and seizure considers the following within the balance of both prudence and justice:
The “nature and extent of the governmental interests involved”;
Maintaining the public’s general interest in crime prevention;
Ensuring law enforcement personnel’s own safety;
Acknowledging the individual’s own interest in privacy and dignity, and;
The degree of intrusion and inconvenience to be summarily imposed.
The reasonableness to conduct a search and seizure is not correlative to probable cause for seeking warrants or criminal charges for arrest. There is a clear distinction to be acknowledged between a stop or detainment by law enforcement personnel and an arrest; furthermore, between a frisk and search. Regardless, any evidence obtained illegally or unconstitutionally by law enforcement personnel thereafter fails under either the exclusionary rule or fruit of the poisonous tree doctrine.

For the purposes of being seized, an individual that has been challenged by a law enforcement officer and placed under their direction and control has been seized, including being handcuffed, confined to the inside of a patrol vehicle, pinned down, etc. As clarified in Terry v. Ohio: “[I]t is nothing less than sheer torture of the English language to suggest that a careful exploration of the outer surfaces of a person’s clothing all over his or her body in an attempt to find weapons is not a ‘search.’”

Such searches and seizures as emphasized by Chief Justice Warren in the Court’s opinion are to be (Terry v. Ohio): “confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.” And “Moreover, it is simply fantastic to urge that such a procedure performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a ‘petty indignity.’ It is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly.”

Justice White added to that: “There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets. Absent special circumstances, the person approached may not be detained or frisked but may refuse to cooperate and go on his way. However, given the proper circumstances, such as those in this case, it seems to me the person may be briefly detained against his will while pertinent questions are directed to him. Of course, the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest, although it may alert the officer to the need for continued observation.” In reference to: Berkemer v. McCarty, 468 U.S. 420, 439 (1984).

Individual state stop and identify statutes have been upheld in Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004); meaning that during a Terry stop (including arrests) an individual is required under state law to properly identify themselves to law enforcement personnel upon request or demand—with exception to cases that would result in the individual incriminating themselves in violation of the Fifth Amendment (e.g., the person has an outstanding warrant, etc.) Such states include:
Alabama (Ala. Code § 15-5-30)
Arizona (Ariz. Rev. Stat. Tit. 13, § 2412 (enacted 2005))
Arkansas (Ark. Code Ann. § 5-71-213(a)(1) (loitering))
Colorado (Colo. Rev. Stat. § 16-3-103(1))
Delaware (Del. Code Ann., Tit. 11, §§ 1902, 1321(6))
Florida (Fla. Stat. § 901.151 (Stop and Frisk Law); §856.021(2) (loitering and prowling))
Georgia (Ga. Code Ann. § 16-11-36(b) (loitering))
Illinois (Ill. Comp. Stat., ch. 725, § 5/107-14)
Indiana (Ind. Code § 34-28-5-3.5)
Kansas (Kan. Stat. Ann. § 22-2402(1))
Louisiana (La. Code Crim. Proc. Ann., Art. 215.1(A); La. Rev. Stat. 14:108(B)(1)(c))
Missouri (Mo. Rev. Stat. § 84.710(2))
Montana (Mont. Code Ann. § 46-5-401)
Nebraska (Neb. Rev. Stat. § 29-829)
Nevada (Nev. Rev. Stat. § 171.123)
New Hampshire (N.H. Rev. Stat. Ann. §§ 594:2, 644:6)
New Mexico (N.M. Stat. Ann. § 30-22-3)
New York (N.Y. Crim. Proc. Law §140.50)
North Dakota (N.D. Cent. Code § 29-29-21)
Ohio (Ohio Rev. Code §2921.29 (enacted 2006))
Rhode Island (R.I. Gen. Laws §12-7-1)
Utah (Utah Code Ann. § 77-7-15)
Vermont (Vt. Stat. Ann., Tit. 24, § 1983)
Wisconsin (Wis. Stat. § 968.24)
Apropos, it is in the personal interest of law enforcement personnel to engage their contacts in casual conversion with the underlying motivation of obtaining the legal justification to conduct a Terry search of their person or vehicle, including any occupants. This lesson was made apparent in Arizona v. Johnson.

[Weston White]

TRAFFIC STOPS

Any traffic violation, regardless how minor, provides law enforcement personnel a legal basis for conducting a traffic stop, Whren v. United States, 517 U.S. 806 (1996).

Beneficial tips to consider before and during traffic stops or in avoidance of being stopped, include:

Pending contact with law enforcement personnel, it is good practice to at all times:
Maintain a clean and well-functioning automobile, including all operating lights, displaying license plates and registration tabs properly, repairing damaged windows or mirrors, and the like;
Memorize the distinctions between a sheriff’s deputy, highway patrol officer, police officer, state trooper, sergeant, lieutenant, captain, community service officer, cadet, volunteer, etc., including patrol, traffic enforcement, and tactical units and;
Whenever in public, place all conspicuous or questionable materials, including any contraband, within a concealable or lockable object that may be hidden from open view.
Whenever a police vehicle is spotted within view while driving, it is good practice throughout the duration to:
Always use your turn signals and make proper lane changes;
Do not smoke a cigarette, talk on a cell-phone, or otherwise appear to be distracted while driving;
Maintain proper speed limits, within 5MPH over or under, and;
Pay attention for speed slow down areas, including: school zones, in-progress roadway repairs and detours, yield, merge, and closed lanes, express ways merging back into public or residential streets (e.g., speed-traps or “cherry patches”), and opposing traffic right-of-ways;
Throughout your encounter with law enforcement personnel it is good practice to:
Yield to being “lite-up” by law enforcement as soon as it is practical and safe to do so, using your turn signal and obeying all traffic laws in the process, while preplanning to stop in an area that provides both your vehicle and the law enforcement’s vehicle a safe distance from the flow of traffic, positioning your vehicle several feet from the shoulder of the roadway, along a side street, or in a publicly accessible parking lot;
Place your vehicle in park, turn your hazard lights on, and mute or turn your stereo down or off;
Roll your window at least one-half way down (noting that you may be approached from either side of your vehicle) and be prepared to present your driver’s license, registration, and insurance documents upon request (i.e., these documents should be kept up to date and readily accessible by the driver of your vehicle at a moment’s notice);
Keep your hands on your steering wheel or in open view on your lap;
Be mindful and remain polite, and;
Never provide an admission of any wrongdoing.

United States v. Watson, 423 U.S. 411, 424-425 (1976): “Because our judgment is that Watson’s arrest comported with the Fourth Amendment, Watson’s consent to the search of his car was not the product of an illegal arrest. To the extent that the issue of the voluntariness of Watson’s consent was resolved on the premise that his arrest was illegal, the Court of Appeals was also in error.

We are satisfied in addition that the remaining factors relied upon by the Court of Appeals to invalidate Watson’s consent are inadequate to demonstrate that, in the totality of the circumstances, Watson’s consent was not his own “essentially free and unconstrained choice” because his “will ha[d] been overborne and his capacity for self-determination critically impaired.” Schneckloth v. Bustamonte, 412 U. S. 218, 412 U. S. 225 (1973). There was no overt act or threat of force against Watson proved or claimed. There were no promises made to him and no indication of more subtle forms of coercion that might flaw his judgment. He had been arrested and was in custody, but his consent was given while on a public street, not in the confines of the police station. Moreover, the fact of custody alone has never been enough in itself to demonstrate a coerced confession or consent to search. Similarly, under Schneckloth, the absence of proof that Watson knew he could withhold his consent, though it may be a factor in the overall judgment, is not to be given controlling significance. There is no indication in this record that Watson was a newcomer to the law, mentally deficient, or unable in the face of a custodial arrest to exercise a free choice. He was given Miranda warnings, and was further cautioned that the results of the search of his car could be used against him. He persisted in his consent.

In these circumstances, to hold that illegal coercion is made out from the fact of arrest and the failure to inform the arrestee that he could withhold consent would not be consistent with Schneckloth and would distort the voluntariness standard that we reaffirmed in that case.”


Delaware v. Prouse, 440 U.S. 648, 653, 660-663 (1979): “The Fourth and Fourteenth Amendments are implicated in this case because stopping an automobile and detaining its occupants constitute a “seizure” within the meaning of those Amendments, even though the purpose of the stop is limited and the resulting detention quite brief. . . . It does not appear, therefore, that a stop of a Delaware-registered vehicle is necessary in order to ascertain compliance with the State’s registration requirements; and, because there is nothing to show that a significant percentage of automobiles from other States do not also require license plates indicating current registration, there is no basis for concluding that stopping even out-of-state cars for document checks substantially promotes the State's interest.

The marginal contribution to roadway safety possibly resulting from a system of spot checks cannot justify subjecting every occupant of every vehicle on the roads to a seizure -- limited in magnitude compared to other intrusions, but nonetheless constitutionally cognizable -- at the unbridled discretion of law enforcement officials. To insist neither upon an appropriate factual basis for suspicion directed at a particular automobile nor upon some other substantial and objective standard or rule to govern the exercise of discretion “would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches. . . .” Terry v. Ohio… By hypothesis, stopping apparently safe drivers is necessary only because the danger presented by some drivers is not observable at the time of the stop. When there is not probable cause to believe that a driver is violating any one of the multitude of applicable traffic and equipment regulations -- or other articulable basis amounting to reasonable suspicion that the driver is unlicensed or his vehicle unregistered -- we cannot conceive of any legitimate basis upon which a patrolman could decide that stopping a particular driver for a spot check would be more productive than stopping any other driver. This kind of standardless and unconstrained discretion is the evil the Court has discerned when, in previous cases, it has insisted that the discretion of the official in the field be circumscribed, at least to some extent. . . . Were the individual subject to unfettered governmental intrusion every time he entered an automobile, the security guaranteed by the Fourth Amendment would be seriously circumscribed. As Terry v. Ohio, supra, recognized, people are not shorn of all Fourth Amendment protection when they step from their homes onto the public sidewalks. Nor are they shorn of those interests when they step from the sidewalks into their automobiles.”

[Weston White]

GROUNDLESS AND UNLAWFUL ARRESTS

Absent exigent circumstances, the pursuit of an outstanding felon, or consent by a resident (Noting that guests visiting at a private residence my not themselves provide valid consent to law enforcement personnel.), an arrest warrant (i.e., Ramey warrant) is required for entry into a private premises, People of California v. Ramey, 16 Cal.3d 263 (1976). Any seizures of contraband or evidence by law enforcement personnel during an unlawful entry into a private premises is to be excluded as admissible evidence in court, People of California v. Trudell, 173 Cal.App.3d 1221 (1985). Furthermore, in order for law enforcement personnel to make lawful entry within a private premises in order to effect an arrest (Ramey) warrant, they must first establish probable cause that the wanted individual is in-fact present at the time that warrant is being served, U.S. v. Gorman, No. 02-50053 (2002).

The same requirements as enumerated above apply to warrants that are be served upon non-residents, United States v. Litteral, 910 F.2d. 547, 533 (9th Cir. 1990) and co-residents, Payton v. United States, 445 U.S. 573 (1980); United States v. Risse, 83 F.3d. 212, 216 (8th Cir. 1996) of third-party private premises. Further noting that if the arrests are effected under such warrants, the third-party premises is open to lawful seizure of any observable contraband or evidence.

The obtaining of arrest and search warrants requires law enforcement personnel to articulate supporting facts establishing the probable cause for the arrest or seizure, including the necessary elements of a known crime and why the individual(s) specified is suspected of having either committed wrongdoing or criminal involvement.

As well-stated in United States v. Lefkowitz, 285 U.S. 452, 466-467 (1932):

“The teachings of that great case were cherished by our statesmen when the Constitution was adopted. In Boyd v. United States, supra, 116 U. S. 630, this Court said:

‘The principles laid down in this opinion [Entick v. Carrington] affect the very essence of constitutional liberty and security. . . . They apply to all invasions on the part of the government and its employees of the sanctity of a man’s home and the privacies of life. . . . Any forcible and compulsory extraction of a man’s own testimony or of his private papers to be used as evidence to convict him of crime or to forfeit his goods is within the condemnation of that judgment. In this regard, the Fourth and Fifth Amendments run almost into each other.’

An arrest may not be used as a pretext to search for evidence. The searches and seizures here challenged must be held violative of respondents’ rights under the Fourth and Fifth Amendments.”

[Weston White]

RESISTING UNLAWFUL ARRESTS

Generally, it is not a crime to run away from law enforcement personnel, at least until they have issued a lawfully valid command (or display, motion, signal, etc.) and it becomes apparent that their orders are being willfully ignored; however, additional concerns are presented in ‘stop and identify’ states, or if the person is on active parole or probation, in the commission of a crime, or in the process of fleeing from a prior act of criminality.

It is of course largely at the sole discretion of the arriving law enforcement officers on what actions to (or not to) take. Instinctually, most will opt to chase down their ‘leg-bailing’ subjects (reasoning that if their fleeing then they must have something illegal to hide from them), subsequently calling for ‘code-three’ backup (perhaps even a K-9 and air-support), and then detain—in handcuffs—that individual in-order to determine why it that they had fled, what is that they have to hide, or what it is that they are up to, while also running them for any outstanding ‘wants and warrants’, in both local databases and NCIC. And most definitely, law enforcement personnel may not shoot a fleeing subject in the back merely because they had fled from them; such action is purely an unlawful “contempt of cop” act by poorly trained and negligent law enforcement officers, which is both blatantly unconstitutional and indefensible.

Upon being stopped by law enforcement personnel, in general, it is your right to not incriminate yourself or others. You may repeatedly emphasize to them that presently, your only and immediate concern is if you are free to leave from their authoritative presence and control; in turn if you are advised by them that you are not, then start your watch or cell-phone timer for a 20-minute countdown and politely inform the law enforcement officer that they now have 20-minutes to charge you with an arrestable offense or to release you from being detained and send you on your way. Otherwise, respectfully, you will need for them to call their field supervisor out to the scene to properly review this instant transgression and that you are from this point onward uninterested in answering any questions that you are not legally obligated to answer and for those questions that you deemed to be required to answer, such being asserted by the officer’s own position, then you respectfully will first need to be provided with a written full citation of the applicable public law or ordinance being relied upon by the officer (so that may later review the statute for any wrongdoing on the part of the law enforcement officer.)

Prior to being actually arrested law enforcement personnel are required—upon your reasonable demand—to first state each of the criminal charges being levied against you, otherwise until such point you are within your right to consider the arresting action as an attempted unlawful arrest (although reasonable exception should be noted during instances involving in-progress crimes of a serious nature or where one is clearly posing an obvious danger to others or themselves.) It is not the law enforcement officer that you are required to respect, but only the public law being enforced.

The individual’s right to assured self-preservation was long ago encapsulated within: Housh v. People of the State of Illinois, 75 Ill. 487 (1874); Runyan v. State of Indiana, 57 Ind. 80, 84 (1877); Plummer v. State of Indiana, 135 Ind. 308, 313-315 (1893); and Beard v. United States, 158 U.S. 550, 563 (1895).


Beard v. United States, 158 U.S. 550, 563 (1895): “In Bishop’s New Criminal Law, the author, after observing that cases of mere assault and of mutual quarrel, where the attacking party has not the purpose of murder in his heart, are those to which is applied the doctrine of the books that one cannot justify the killing of another, though apparently in self-defense, unless he retreat to the wall or other interposing obstacle before resorting to this extreme right, says that:

‘Where an attack is made with murderous intent, there being sufficient overt act, the person attacked is under no duty to fly. He may stand his ground, and, if need be, kill his adversary. And it is the same where the attack is with a deadly weapon, for in this case a person attacked may well assume that the other intends murder, whether he does in fact or not.’

Vol. 1, § 850. The rule is thus expressed by Wharton:

‘A man may repel force by force in defense of his person, habitation, or property against anyone or many who manifestly intend and endeavor to commit a known felony by violence or surprise or either. In such case he is not compelled to retreat, but may pursue his adversary until he finds himself out of danger, and if, in the conflict between them he happen to kill him, such killing is justifiable.’”


Plummer v. State, 135 Ind. 308, 313-315 (1893): “The law does not allow a peace officer to use more force than is necessary to effect an arrest. 1 Am. and Eng. Ency. Of Law, 745, and authorities cited.

And if he do use such unnecessary force, he thereby becomes a trespasser from the beginning, and may be lawfully resisted. 1 Am. and Eng. Ency. Of Law, 745, and authorities there cited; Murfree on Sheriffs, section 1164a, and authorities there cited; Murfree on Sheriffs, sections 1160 and 148; Jarratt v. Gwathmey, 5 Blackf. 237; Burton v. Calaway, 20 Ind. 469.

If the officer is resisted before he has used needless force and violence, he may then press forward and overcome such resistance, even to the taking of the life of the person arrested, if absolutely necessary. 1 Bish. Crim. Proced., section 160; 1 Am. and Eng. Encyc. Of Law, 745, and authorities there cited; Murfree on Sheriffs, section 1164a.

But here the evidence wholly fails to show any necessity for the marshal’s act in striking Plummer on the head with his club. He therefore was a trespasser in doing so, and was guilty of an aggravated assault and battery on Plummer.

He did not stop at that, but he shot at Plummer with his revolver immediately after he struck him on the head, and before Plummer had fired at him. This gave Plummer a clear right to defend himself, even to the taking the life of his assailant. It is not necessary to authorize one to exercise the right of self-defense that the assailant should in fact contemplate injury to him. If he believes, and has reason to believe, from the actions of his assailant, that he is in danger of receiving great bodily harm, he may defend himself to a reasonable extent. West v. State, 59 Ind. 113; Agee v. State, 64 Ind. 340; McDermott v. State, 89 Ind. 187.

When a person, being without fault, is in a place where he has a right to be, is violently assaulted, he may, without retreating, repel force by force, and if, in the reasonable exercise of his right of self-defense, his assailant is killed, he is justifiable. Runyan v. State, 57 Ind. 80; Miller v. State, 74 Ind. 1.

These principles apply as well to an officer attempting to make an arrest, who abuses his authority and transcends the bounds thereof by the use of unnecessary force and violence, as they do to a private individual who unlawfully uses such force and violence. Agee v. State, supra; Jones v. State, 26 Tex. App. 1; 1 Am & Eng. Encyc. of Law, 745, note 1; Golden v. State, 1 S. C. 292; Beaverts v. State, 4 Tex. App. 175; Skidmore v. State, 43 Tex. 93.

Plummer was on the street, going home; he had a right to be there, and he had a right to carry his revolver with him, and even though the marshal supposed he was carrying it openly with intent or avowed purpose of injuring his fellow man, that did not justify the extreme measure he restored to. He approached Plummer with his revolver in one hand and his club in the other, and struck Plummer on the head. This furnished reasonable ground for the belief, in Plummer’s mind, that he was in danger of receiving great bodily harm, and the circumstances show that he did believe it. And though Plummer may have instantly begun to prepare to defend himself against this unlawful assault, he did not shoot until after Dorn fired on him.

The statute provides that an arrest, under a warrant, is made by an actual restraint of the defendant, or by his submission to the custody of the officer; but that the person arrested shall not be subject to any more restraint than is necessary for his arrest and detention, and the officer must inform him that he acts under the authority of a warrant, and show it, if required. R. S. 1881, sections 1687 and 1688.

Where an arrest is made for a misdemeanor, without a warrant, the reasons for requesting the person to submit to such arrest are as great, if not greater, than where there is a warrant.

We are constrained to hold that Dorn, if he even had the right to make the arrest without a warrant, abused that authority by striking Plummer over the head with his policeman’s club. Had he informed Plummer that he intended to arrest him, and requested him to submit to such arrest, and then Plummer had refused to submit and resisted, or threatened to resist arrest, with any demonstration of force, a very different question would have been presented. In such a case, the officer, as we have seen, having authority to arrest, would have been justified in using force sufficient and necessary to overcome such resistance, even to the taking of the life of the person he was attempting to arrest.”


Runyan v. State, 57 Ind. 80, 84 (1877): “When a person, being without fault, is in a place where he has a right to be, is violently assaulted, he may, without retreating, repel by force, and if, in the reasonable exercise of his right of self defense, his assailant is killed, he is justiciable.”


Housh v. People of the State of Illinois, 75 Ill. 487 (1874): “The citizen is, both by the constitution and the law, entitled to be free from arrest, by warrant on a criminal charge, until a complaint under oath or affirmation is made, charging that a crime has been committed, and that there is probable cause to suspect that he committed the same. . . . A majority of the court are of opinion that, the affidavit being insufficient, the prisoner was improperly deprived of his liberty, and he was justified in asserting his right to freedom, guarantied to him by the constitution and the law, by refusing to submit to the warrant. In breaking away from the officer’s custody he committed no offense: The State v. Leach, 7 Conn., 752.

It is true, as contended by the state attorney, that as the warrant was regular on its face, the officer who made the arrest, and the appellant who received the custody of the prisoner, would be protected in an action for assault and false imprisonment, in consequence of his arrest and deprivation of liberty, but it does not follow therefrom that appellant was bound to obey the warrant. The somewhat anomalous condition that a sheriff or constable occupies in such cases is well explained in Tuttle et al. v. Wilson, 24 Ill., 561.

It is there said: ‘The rule that a ministerial officer is protected in the execution of process issued by a court, or officer having jurisdiction of the subject matter, and of the process, if it be regular on its face, and does not disclose a want of jurisdiction, is a rule of protection merely, and beyond that confers no right; it is held to be personal to the officer himself, and affords no shelter to the wrong-doer, under color of whose process, if it be void, the officer is called upon to act.’

‘Such an officer may stop in the execution of process, regular on its face, whenever he becomes satisfied there is a want of jurisdiction in the officer or court issuing it; and if sued for neglect of duty, may show in his defense such want of jurisdiction: Earl v. Camp et al., 16 Wend., 562. He can, if he chooses, take the responsibility of determining the question of jurisdiction, or any other question to which the process may give rise.’”

* However, in consideration of the above case it is important to realize the findings since held in The People of the States of Illinois v. Hill, 17 Ill. 2d 112 (1959):

“Basically, the contention is that a prisoner commits no crime when he escapes unless his commitment is technically lawful in all respects. There are decisions that seem to have so held, (e.g., People v. Ah Teung, 92 Cal. 421, 28 Pac. 577; State v. Pishner, 73 W.Va. 744, 81 S.E. 1046; State v. Ferguson, 100 Ohio App. 191, 135 N.E.2d 884,) and indeed Housh v. People, 75 Ill. 487, looks in that direction, although the case is distinguishable on its facts. But a more realistic point of view has come to prevail. “A prisoner in a penal institution under commitment by a court of competent jurisdiction may not defy his guards and run away. * * * Escape and attempted escape from prison involve dangerous consequences. Prison guards are authorized by law to shoot a prisoner who attempts to escape.” (Tann v. Commonwealth, 190 Va. 154, 56 S.E.2d 47, 49.) “Remedies are available for procuring through legal process the release of those who are unlawfully held in custody.” (Mullican v. United States, (5th cir.) 252 F.2d 398, 403.) See also, Aderhold v. Soileau, (5th cir.) 67 F.2d 259; Bayless v. United States, (9th cir.) 141 F.2d 578; Lopez v. Swope, (9th cir.) 205 F.2d 8; Moore v. Commonwealth, 301 Ky. 851, 193 S.W.2d 448; Stinehagen v. Olson, 145 Neb. 653, 17 N.W.2d 674; State v. Hayes, 52 N.J.Super. 178, 145 A.2d 28; People v. Hinze, 97 Cal.App.2d 1, 217 P.2d 35.

We hold, therefore, that even if the indictment under which the defendant was held was invalid, its validity can not be challenged in this case. More orthodox procedures than escape were available to raise that issue.”


State of North Carolina v. Branch, No. COA08-20 (2008): “The conclusions of law, however, are reviewed de novo by this Court. State v. Brooks, 337 N.C. 132, 141, 446 S.E.2d 579, 585 (1994).

Our Supreme Court has long held:

“It is axiomatic that every person has the right to resist an unlawful arrest. In such case the person attempting the arrest stands in the position of a wrongdoer and may be resisted by the use of force, as in selfdefense. True the right of a person to use force in resisting an illegal arrest is not unlimited. He may use only such force as reasonably appears to be necessary to prevent the unlawful restraint of his liberty. And where excessive force is exerted, the person seeking to avoid arrest may be convicted of assault, or even of homicide if death ensues.” State v. Mobley, 240 N.C. 476, 478-79, 83 S.E.2d 100, 102 (1954) (citations omitted).

In applying this rule of law, this Court has engaged in the following analytical framework:

“Since the initial arrest . . . [was] illegal, plaintiff was entitled to use a reasonable amount of force to resist. Under this analysis, if the amount of force used by plaintiff was unreasonable . . ., then the officers had probable cause to arrest him under G.S. § 14-33(b)(8) [the statute criminalizing an assault on a law enforcement or government officer]. However, [the officers] did not have probable cause to arrest plaintiff for assault on an officer if, at the time, plaintiff was using a reasonable amount of force to resist the illegal arrests. . . . Furthermore, if the amount of force used by plaintiff was reasonable, he had a clearly established right, as a matter of law, not to be arrested for a violation of G.S. § 14-33(b)(8).” Roberts v. Swain, 126 N.C. App. 712, 725-26, 487 S.E.2d 760, 769, disc. review denied, 347 N.C. 270, 493 S.E.2d 746 (1997) (citation omitted).

Moreover, the General Assembly has also provided that an individual “is not justified in using a deadly weapon or deadly force to resist an arrest by a law-enforcement officer using reasonable force,” when the individual knows that it is a true law enforcement officer who is attempting to make the arrest. N.C. Gen. Stat. § 15A-401(f)(1) (2005).

In the instant case, as found by the trial court, the authority of Officer Young’s traffic stop of Defendant’s vehicle was limited to the “articulated facts and reasonable suspicion concerning the 30 day tag,” namely, that the expiration date was not clearly visible. We agree with the trial court that Officer Young’s detention of Defendant beyond the time it took to check his license and registration was unlawful, as Officer Young lacked reasonable suspicion to justify the detention until the arrival of a canine unit. As such, Defendant did have the right to use “such force as reasonably appear[ed] to be necessary to prevent the unlawful restraint of his liberty.” Mobley, 240 N.C. at 479, 83 S.E.2d at 102 (citation omitted).”


Wilson v. State, 842 N.E.2d 443, 447-448 (Ind. Ct. App. 2006): “The trial court erroneously believed that the rule stated in Plummer has been set aside. The trial court’s allusion to the right to challenge an improper arrest in a civil court shows that the court equated the rule stated in Plummer with the very different rule discussed in Fields v. State, 178 Ind.App. 350, 382 N.E.2d 972 (1978). In Fields, the issue before the court was whether any amount of force should be used by one unlawfully but peaceably arrested. Id. at 976. The court stated that the common law rule allowing a person to resist an unlawful but peaceful arrest is outmoded because it tends to escalate violence. Id. at 975. The court further stated that “[a] citizen, today, can seek his remedy for a policeman’s unwarranted and illegal intrusion into the citizen’s private affairs by bringing a civil action in the courts against the police officers and the governmental unit which the officer represents.” Id. Therefore, the court held that “although [Field’s] initial arrest was unlawful, he was not entitled to forcefully resist [the arresting officer’s] attempt to apprehend him.” Id. at 975. The court specifically noted that “this appeal does not address issues that arise when an arrestee apprehends that the arresting officer is using excessive force and that unless the arrestee defends himself, he is likely to suffer great bodily harm or death.” Id.

In Wise v. State, 401 N.E.2d 65, 68 (Ind.Ct.App.1980), this court noted that Fields did not address the common law rule allowing a person to use force in resisting excessive force by an arresting officer. We further noted that other jurisdictions have recognized the general rule that an arrestee may use reasonable force “to defend himself against the use of greater force by the arrester than is required to effect the arrest.” Id. (citing Anno.: 44 A.L.R.3d 1078 (1972)). We discussed Heichelbech v. State, 258 Ind. 334, 281 N.E.2d 102 (1972) and Birtsas v. State, 156 Ind. App. 587, 297 N.E.2d 864 (1973), and concluded that “[w]hile neither Heichelbech nor Birtsas explicitly states so, they clearly imply that Indiana adheres to the general rule allowing an arrestee to resist the arrester’s use of excessive force by the use of reasonable force to protect himself against great bodily harm or death.” Id.

In a subsequent case, this court noted that “the rule that a citizen may not resist a peaceful, though illegal, arrest was not `intended as a blanket prohibition so as to criminalize any conduct evincing resistance where the means used to effect an arrest is unlawful.”’ Shoultz v. State, 735 N.E.2d 818, 823 (Ind.Ct.App.2000) (citing Casselman v. State, 472 N.E.2d 1310, 1315 (Ind. Ct.App.1989)). We concluded that a citizen has the right to resist an officer that has used unconstitutionally excessive force in effecting an arrest, but the force used to resist the officer’s excessive force may not be disproportionate to the situation.

The Wise and Shoultz cases were correct in their interpretation of the case law. There has been no abrogation of the common law rule allowing an arrestee to resist arrest to avoid personal injury or death when the arresting officers engage in excessive force. Furthermore, the rule should be interpreted to encompass a situation where an arrestee determines to retreat rather than escalate the violence. Accordingly, the trial court erred in determining that the proposed instruction was an incorrect statement of the law.” See also: 2 Wharton’s Criminal Law § 126 (15th ed., 2012).


Through judicial precedence the common law right of resisting unlawful arrest by law enforcement personnel, has become greatly restricted to virtually only the following circumstances:
Pursuing law enforcement personnel fail to appropriately identify themselves, (e.g., the arrestee reasonably feels that they are being targeted for a seriously violent act of criminality such as: assassination, carjacking, home invasion, kidnapping, or robbery, unknowingly, by undercover or non-identifiable law enforcement personnel; etc.);
Assumed law enforcement personnel are acting in such a highly questionable manner (e.g., dangerously, menacing, negligently, etc.) so as to cause a reasonable person to hold the realization that the impersonation of a law enforcement personnel is likely occurring before them, with the intent to victimize them, or;
There is a reasonable belief by an arrestee that if they permit themselves to be taken into custody by law enforcement personnel, they will likely be subjected to police brutality, grave bodily harm, or battery (e.g., presently being subjected to unjustified excessive force through physical force, including the use of less-lethal weapons; intimated through terroristic threats, motions, or gestures; etc., by law enforcement personnel.)
It should be noted that the use of lethal-force on the part of an arrestee against law enforcement personnel will likely place the life of the arrestee at peril, labeling them as a “cop killer” to be thereafter zealously hunted as if they were a vicious predator having escaped the wilds of the Sahara, further such an act will find no favor within either the courtroom or the court of public opinion—and even if such action is judged to be legally justified, it will very likely result in the lesser charge of manslaughter. Regardless, the use of physical-force against law enforcement personnel should only be, at the very most, exactly reciprocal to counter the level of force being waged against their person (i.e., proportionate in response); the use of lethal-force against law enforcement personnel should only ever be used when there is absolutely no other means remaining available and the level of force has been raised to the point warranting the potential for loss of human life. Further, law enforcement personnel should in all instances be granted the privilege of “casting the first stone”.


QUOTATIONS CONTINUED (http://www.ronpaulforums.com/showthread.php?452524-Artfully-Retaining-Control-while-Deflecting-Field-Interrogation-Tactics&p=5537816&viewfull=1#post5537816)

[Weston White]

SEARCH INCIDENT TO LAWFUL ARREST

Those subject to a lawful arrest may be searched without a warrant, including the arrestee’s immediate proximity at the time of the arrest; additionally, any vehicles associated with the arrestee, which they were either occupying or had access to during the timeframe of them being arrested. That is so far as it is reasonable to deduce that the arrestee had either retrieved or hidden items—including weapons—that directly pertain to their arrest, during that same period of time. Blanket vehicle searches incident to lawful arrest are no longer valid, Arizona v. Gant, 556 U.S. 332 (2009). All such warrantless searches conducted against an arrestee require either:

(1) An actual and continuing threat imposed upon law enforcement personnel, or;
(2) Law enforcement personnel’s need to preserve criminally related evidence from tampering.

Justice Scalia’s concurring opinion: “In my view we should simply abandon the Belton-Thornton charade of officer safety and overrule those cases. I would hold that a vehicle search incident to arrest is ipso facto “reasonable” only when the object of the search is evidence of the crime for which the arrest was made, or of another crime that the officer has probable cause to believe occurred.”


Brinegar v. United States, 338 U.S. 160, 176-178 (1949): “These long-prevailing standards seek to safeguard citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime. They also seek to give fair leeway for enforcing the law in the community’s protection. Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability. The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating these often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers’ whim or caprice.

The troublesome line posed by the facts in the Carroll case and this case is one between mere suspicion and probable cause. That line necessarily must be drawn by an act of judgment formed in the light of the particular situation and with account taken of all the circumstances. No problem of searching the home or any other place of privacy was presented either in Carroll or here. Both cases involve freedom to use public highways in swiftly moving vehicles for dealing in contraband, and to be unmolested by investigation and search in those movements. In such a case, the citizen who has given no good cause for believing he is engaged in that sort of activity is entitled to proceed on his way without interference. But one who recently and repeatedly has given substantial ground for believing that he is engaging in the forbidden transportation in the area of his usual operations has no such immunity, if the officer who intercepts him in that region knows that fact at the time he makes the interception and the circumstances under which it is made are not such as to indicate the suspect is going about legitimate affairs.

This does not mean, as seems to be assumed, that every traveler along the public highways may be stopped and searched at the officers’ whim, caprice or mere suspicion. [Footnote 17] The question presented in the Carroll case lay on the border between suspicion and probable cause. But the Court carefully considered that problem and resolved it by concluding that the facts within the officers’ knowledge when they intercepted the Carroll defendants amounted to more than mere suspicion, and constituted probable cause for their action. We cannot say this conclusion was wrong, or was so lacking in reason and consistency with the Fourth Amendment’s purposes that it should now be overridden. Nor, as we have said, can we find in the present facts any substantial basis for distinguishing this case from the Carroll case.

[Footnote 17] ‘It would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on the chance of finding liquor, and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search. Travelers may be so stopped in crossing an international boundary because of national self-protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in. But those lawfully within the country, entitled to use the public highways, have a right to free passage without interruption or search unless there is known to a competent official authorized to search, probable cause for believing that their vehicles are carrying contraband or illegal merchandise. Carroll v. United States, 267 U. S. 132, 267 U. S. 153-154.’”


Carroll v. United States, 267 U.S. 132, 147-150 (1925): “The Fourth Amendment does not denounce all searches or seizures, but only such as are unreasonable.

The leading case on the subject of search and seizure is Boyd v. United States, 116 U. S. 616. An Act of Congress of June 22, 1874, authorized a court of the United States, in revenue cases, on motion of the government attorney, to require the defendant to produce in court his private books, invoices and papers on pain in case of refusal of having the allegations of the attorney in his motion taken as confessed. This was held to be unconstitutional and void as applied to suits for penalties or to establish a forfeiture of goods, on the ground that, under the Fourth Amendment, the compulsory production of invoices to furnish evidence for forfeiture of goods constituted an unreasonable search even where made upon a search warrant, and that it was also a violation of the Fifth Amendment, in that it compelled the defendant in a criminal case to produce evidence against himself or be in the attitude of confessing his guilt.

In Weeks v. United States, 232 U. S. 383, it was held that a court in a criminal prosecution could not retain letters of the accused seized in his house, in his absence and without his authority, by a United States marshal holding no warrant for his arrest and none for the search of his premises, to be used as evidence against him, the accused having made timely application to the court for an order for the return of the letters.

In Silverthorne Lumber Company v. United States, 251 U. S. 385, a writ of error was brought to reverse a judgment of contempt of the District Court, fining the company and imprisoning one Silverthorne, its president, until he should purge himself of contempt in not producing books and documents of the company before the grand jury to prove violation of the statutes of the United States by the company and Silverthorne. Silverthorne had been arrested, and, while under arrest, the marshal had gone to the office of the company without a warrant and made a clean sweep of all books, papers and documents found there, and had taken copies and photographs of the papers. The District Court ordered the return of the originals, but impounded the photographs and copies. This was held to be an unreasonable search of the property and possessions of the corporation and a violation of the Fourth Amendment, and the judgment for contempt was reversed.

In Gouled v. United States, 255 U. S. 298, the obtaining through stealth by a representative of the Government, from the office of one suspected of defrauding the Government, of a paper which had no pecuniary value in itself, but was only to be used as evidence against its owner, was held to be a violation of the Fourth Amendment. It was further held that, when the paper was offered in evidence and duly objected to, it must be ruled inadmissible because obtained through an unreasonable search and seizure, and also in violation of the Fifth Amendment because working compulsory incrimination.

In Amos v. United States, 255 U. S. 313, it was held that, where concealed liquor was found by government officers without a search warrant in the home of the defendant, in his absence, and after a demand made upon his wife, it was inadmissible as evidence against the defendant because acquired by an unreasonable seizure.

In none of the cases cited is there any ruling as to the validity under the Fourth Amendment of a seizure without a warrant of contraband goods in the course of transportation and subject to forfeiture or destruction.

On reason and authority, the true rule is that, if the search and seizure without a warrant are made upon probable cause, that is, upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction, the search and seizure are valid. The Fourth Amendment is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted, and in a manner which will conserve public interests as well as the interests and rights of individual citizens.

In Boyd v. United States, 116 U. S. 616, as already said, the decision did not turn on whether a reasonable search might be made without a warrant; but for the purpose of showing the principle on which the Fourth Amendment proceeds, and to avoid any misapprehension of what was decided, the Court, speaking through Mr. Justice Bradley, used language which is of particular significance and applicability here. It was there said (page 116 U. S. 623):

‘The search for and seizure of stolen or forfeited goods, or goods liable to duties and concealed to avoid the payment thereof, are totally different things from a search for and seizure of a man’s private books and papers for the purpose of obtaining information therein contained, or of using them as evidence against him. The two things differ toto coelo. In the one case, the government is entitled to the possession of the property; in the other, it is not. … So, also, the laws which provide for the search and seizure of articles and things which it is unlawful for a person to have in his possession for the purpose of issue or disposition, such as counterfeit coin, lottery tickets, implements of gambling, &c., are not within this category. Commonwealth v. Dana, 2 Met. (Mass.) 329. Many other things of this character might be enumerated.’”

[Weston White]

WARRANTLESS SEARCH OR SEIZURE DOCTRINES

The plain view doctrine, permits law enforcement personnel to seize as evidence either contraband or evidence that has been left in open view or that is readily observable. However, probable cause is first required, establishing the object as being either contraband or evidence. Under this doctrine, such discoveries needn’t be made inadvertently (Horton v. California, 496 U.S. 128 (1990).) Objects in the way may not be moved about by law enforcement personnel in order to acquire a better view (Arizona v. Hicks, 480 U.S. 321 (1987).) First Amendment protected materials first require judicial authorization prior to seizing (including: books, compact-disks, magazines, movies, tapes, videos, etc.), (Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46 (1989).)

Further, the plain view discoveries must pass a three-pong Horton test, that:

1. The officer is lawfully present at the place where the evidence can be plainly viewed,
2. The officer had a lawful right of access to the object, and
3. The incriminating character of the object to be “immediately apparent.”

The plain view doctrine further encompasses the human senses, including: plain feel, plain smell, plain hearing, and plain shape, sub-doctrines. The totality of these doctrines applies to frisks or searches conducted by law enforcement personnel, including the Department of Homeland Security’s (DHS), Transportation Security Administration (TSA).

Plain feel: This test requires that an object be instantly obvious or immediately apparent in its character or quality of being either contraband or evidence. As per Minnesota v. Dickerson, 508 U.S. 366, 375-375 (1993):

“If a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context.”

Continuing, supra, 378: “Here, the officer’s continued exploration of respondent’s pocket after having concluded that it contained no weapon was unrelated to “[t]he sole justification of the search [under Terry:] . . . the protection of the police officer and others nearby.” 392 U.S., at 29. It therefore amounted to the sort of evidentiary search that Terry expressly refused to authorize, see id., at 26, and that we have condemned in subsequent cases.”

Plain smell: Permits for a specially trained police K-9 or law enforcement personnel to conduct a smell-test within a lawfully accessible area or upon an object for the odor of chemical or narcotic contraband, to wit, may then be searched or seized without warrant. Illinois v. Caballes, 03-923 (2005)

Plain hearing: This test permits law enforcement personnel to take immediate or forceful actions, without the necessity of first obtaining a warrant, based upon incriminating conversations that are overheard while in lawfully accessible areas by either themselves or others, including undercover law enforcement personnel. Hoffa v. United States, 385 U.S. 293 (1966)

Plain shape: This test pertains to distinctive baggage, containers, or packages (e.g., firearm or musical instrument cases; transparent bags or containers; narcotics paraphernalia, such as: bongs, needles, pipes, or vials; etc.) which are presumed to expose their inner contents by their obvious appearance or shape, thus, removing any expectation of privacy. Texas v. Brown, 460 U.S. 730 (1983)

Additional areas or means that are subject to warrantless search or seizure include:

Abandoned property: Willfully discarded objects within lawfully accessible areas, including trash receptacles or containers are subject to search and those objects or items contained therein to seizure without warrant by law enforcement personnel—as there is no longer any reasonable expectation of privacy to be enjoyed. California v. Greenwood, 486 U.S. 35 (1988)

Controlled Delivery: For the purposes of reexamining lawfully intercepted objects (e.g., bags, containers, packages, etc.) that are already known to contain contraband or evidence within them, yet were arranged to proceed onto its intended destination, no warrant is required—with exception to when (through error) such objects have made into private property or remained unobservable for a period of time while the illicit contents was removed, and no other warrantless exception exists. Illinois v. Andreas, 463 U.S. 765 (1983)

Exposed Characteristics: No warrant is required to compel exemplars from individuals that are at the time being held in lawful custody by law enforcement personnel—having already been formally charged or previously convicted, further including:
Fingerprints (Davis v. Mississippi, 394 U.S. 721 (1969));
Handwriting samples (United States v. Euge, 444 U.S. 707 (1980));
Mug shots (United States v. Crews, 445 U.S. 463 (1980)), or;
Voice samples (United States v. Dionisio, 410 U.S. 1 (1973).)
Open fields: Contraband or evidence that is visible upon an open field, including from the air, is subject to warrantless confiscation as evidence by law enforcement personnel (e.g., cultivated drug plants, chop-shops, toxic waste-runoff, etc.) Oliver v. United States, 466 U.S. 170 (1984)

Private-Party Revelations: Any contraband or evidence that is lawfully discovered and turned over to law enforcement personnel by nongovernmental, private second or third parties is exempted from warrant requirements as the expectation for privacy is no longer existent (e.g., A FedEx Office employee, in accordance with their business policy, opens a damaged parcel that is leaking white powder, subsequently turning its entire contents over to their local police on the basis that is could be a major narcotic.), United States v. Jacobsen, 466 U.S. 109 (1984).

The issuing and enforcement of a nonconsensual search warrant requires law enforcement personnel to (1) establish a valid probable cause (PC) and (2) a determinable physical opportunity. Probable cause attests a fair probability exists that the target location contains known or identifiable contraband or pertinent evidence, fruits, or instruments of criminality, Illinois v. Gates, 462 U.S. 213 (1983).

Law enforcement personnel may attempt to circumvent the necessity of a search warrant when it is realized that they lack probable cause through such tactics as:
Conditions of probation or parole: As a condition of early release, probationers and parolees may be open to “search or seizure” by law enforcement personnel at any time or place, including their residences on-file. Samson v. California, 04-9728 (2006)
Inventory of evidence: Evidence that is being impounded or booked by law enforcement personnel, may, in accordance with either internal administrative requirements and/or security protocols, have its inner compartments and contents searched and seized, or otherwise inventoried, without warrant. Colorado v. Bertine, 479 U.S. 367 (1987)
Jail booking or processing: Arrestees to-become prisoners that are in lawful custody by law enforcement personnel are legally open to warrantless search and seizure in accordance with either internal administrative requirements and/or security protocols. Illinois v. Lafayette, 462 U.S. 640 (1983)
Office safety: Requires a reasoned or articulable suspicion that an individual being contacted by law enforcement personnel is both armed and dangerous; thus, making them subject to a Terry-risk or outer clothing pat-down for dangerous weapons on their person, Terry v. Ohio, 392 U.S. 1 (1968). This authority further extents to both private premises where the same degree of suspicion exists that a wanted individual may be occupying, Maryland v. Buie, 494 U.S. 325 (1990); and routine jail or prison cell checks, Block v. Rutherford, 468 U.S. 576 (1984).
Provided consent: Law enforcement personnel may request voluntary cooperation, providing them lawful consent to conduct a search or seizure of their person, property, or residence. Schneckloth v. Bustamonte, 412 U.S. 218 (1973)
Search incident to arrest: An individual that is to be arrested may be searched, and their illicit or incriminating property seized, immediately upon their arrest or near the approximate time of their arrest, United States v. Robinson, 414 U.S. 218 (1973). Further, if they were an occupant of a vehicle just prior to their arrest, their reachable “lunge-area” within the vehicle’s passenger area is subject to search and seizure, Thornton v. United States, 03-5165 (2004). An arrest made within a private premise, where lawfully entry has been made, is open to warrantless search and seizure, in so far that the area was immediately accessible to the arrestee at the approximate time of being arrested, Chimel v. California, 395 U.S. 752 (1969). With consideration to officer’s safety, law enforcement personnel are lawfully permitted to visually ‘secure’ the adjoining areas of private premises where an arrest or crime has been committed, Maryland v. Buie, 494 U.S. 325 (1990).
Surgical excisions made into an individual’s body for the recovery of evidence (e.g., bullet fragments) upon the command of law enforcement personnel are of such an invasive magnitude that they are legally unreasonable, even when doing so will likely produce criminal evidence, Winston v. Lee, 470 U.S. 753 (1985).

Actions, behaviors, or procedures conducted on behalf or in the interests of law enforcement personnel, which would reasonably be found to ‘shock the conscience’ effects the violation of an individual’s due process: “[We] find no valid ground of distinction between a verbal confession extracted by physical abuse and a confession wrested from defendant’s body by physical abuse.”, Rochin v. California, 342 U.S. 165 (1952).

The illegal or malice collection of contraband or evidence by law enforcement personnel subjects them to civil liabilities and the likelihood that their fruits will be suppressed in trial. A logically sound maxim for all law enforcement personnel is for them to attempt to acquire a judicially authorized search warrant whenever possible.

Law enforcement personnel are not attorneys—they have no legal authority to practice law. The majority share of their policing duties should entail to function as meditators for disputes, complaint or report takers, evidence gatherers for chain-of-custody, and the like.

So long as the requirements for probable cause is realized, incidents involving bona fide exigent circumstances (i.e., requiring that immediate search or seizure be made in order to neutralize an ongoing emergency) permit the necessity of first obtaining a search warrant to be negated lawfully, Mincey v. Arizona, 437 U.S. 385 (1978). The following exigencies are legally valid under this exception:

Fleeting targets: Are all forms of motorized vehicle, including: automobiles, boats, buses, cars, plains, recreational-vehicles (RV), trains, trucks, vans, etc., California v. Carney, 471 U.S. 386 (1985); so long that law enforcement personnel establish the probable cause, reasonably suspecting that there is contraband or evidence being concealed therein, there is no warrant requirement in order to conduct a search or seizure upon that motorized vehicle, United States v. Ross, 456 U.S. 798 (1982). This is primarily due to their mobility and limited expectation of privacy while in public. Further, this warrantless exception extends to motorized vehicles that have already been impounded by law enforcement personnel or are exclusively within their control or custody, Michigan v. Thomas, 458 U.S. 259 (1982).

Fresh Pursuit: Pursuits by law enforcement personnel (including leg-bail and failure-to-yields), where the suspect(s) have fled into a private dwelling, in order to avoid being apprehended for having committed a violent crime (i.e., a felony or otherwise a misdemeanor within view of law enforcement personnel) may be breached and searched without warrant, Warden v. Hayden, 387 U.S. 294 (1967).

Imminent Destruction of Evidence: In cases involving destructible or movable evidence within a private dwelling where the occupants have become aware of law enforcement personnel’s interest in collecting that evidence and would be capable of disposing it quickly, may be breached and searched without warrant, Ker v. California, 374 U.S. 23 (1963). This further applies to warrantless seizures of “evanescent evidence” (e.g., blood-alcohol (BAC) samples) that is based upon probable cause, Schmerber v. California, 384 U.S. 757 (1966).

Preventing Escape: If an individual that is either being actively detained or in the process of being arrested manages to retreat or flee into a private premises that location may be breached and searched without warrant. United States v. Santana, 427 U.S. 38 (1976)

Public Safety Threat: Incidents affecting the general safety or security of the public, requiring an immediate and prolonged response, are exempt from search warrant requirements, such as: active-shooters or mass-shootings, bomb-threats, hazardous-material spills, natural disasters, etc., Cady v. Dombrowski, 413 U.S. 433 (1973). However, the authority granted under this exemption is limited only to the actions necessary in order to cease the dangers being imposed by the sustained emergency—any further search or seizure that is likely unrelated or to be conducted afterward will first require that a search warrant be obtained, Michigan v. Clifford, 464 U.S. 287 (1984).

Rescue: The occupied private premises of individuals that are likely in need of immediate or emergency aid, may be breached and searched without warrant, during incidents involving: active domestic violence, fire or gas leaks, kidnappings, medical aids, etc. This exception further extends to searching other alternative means for information which may provide a physical location of the foregoing, such as a known or in-custody suspects, involved parties, or cell-phone records, etc. Brigham City v. Stuart, 05-502 (2006)

Substantial Property Damage: The private premises of individuals which are under an imminent threat of destruction or loss, may be breached and searched without warrant, during such incidents as: fires, gas leaks, in-progress burglaries, major floods, etc. Michigan v. Tyler, 436 U.S. 499 (1978)


State of North Carolina v. Wilson, No. COA08-1536 (2009): “It is well established that “‘[l]aw enforcement officers do not violate the Fourth Amendment’s prohibition of unreasonable seizures merely by approaching individuals on the street or in other public places and putting questions to them if they are willing to listen.’” State v. Campbell, 359 N.C. 644, 662, 617 S.E.2d 1, 13 (2005) (quoting United States v. Drayton, 536 U.S. 194, 200, 153 L. Ed. 2d 242, 251 (2002)). Rather, “[t]he encounter will not trigger Fourth Amendment scrutiny unless it loses its consensual nature.” Id. (quoting Florida v. Bostick, 501 U.S. 429, 434, 115 L. Ed. 2d 389, 398 (1991)). “A seizure does not occur until there is a physical application of force or submission to a show of authority.” State v. West, 119 N.C. App. 562, 566, 459 S.E.2d 55, 58, disc. review denied, 341 N.C. 656, 462 S.E.2d 524 (1995) (citations omitted). “The test for determining whether a seizure has occurred is whether under the totality of the circumstances a reasonable person would feel that he was not free to decline the officers’ request or otherwise terminate the encounter.” State v. Brooks, 337 N.C. 132, 142, 446 S.E.2d 579, 586 (1994) (citations omitted).

In Brooks, an SBI agent and other officers arrived during the dark evening hours in marked patrol cars to execute a search warrant for illegal drugs at a nightclub. Id. at 136, 446 S.E.2d at 583. The SBI agent wore a marked “raid” jacket with a badge on the front and “POLICE” written in big letters across the back and a baseball cap showing the letters “SBI.” Id. The SBI agent observed and walked toward a parked car in the rear of the parking lot. Id. at 137, 446 S.E.2d at 583. A man standing outside the car walked away as the SBI agent approached. Id. The SBI agent shined his flashlight on the defendant in the car, and observed a gun holster laying on the passenger’s seat. Id. at 137, 446 S.E.2d at 583. In response to the agent’s questions, the defendant handed the agent his gun, denied having drugs in his car, and offered to allow the agent to search his car. Id. at 137, 446 S.E.2d at 583. The defendant facilitated the agent’s search by opening closed compartments of his car, and when the agent discovered drugs and drug paraphernalia, the defendant admitted possessing them. Id.

The defendant in Brooks moved to suppress the evidence, arguing that the agent lacked reasonable suspicion to approach his car. Id. at 141, 446 S.E.2d at 585. The trial court concluded that the agent had reasonable suspicion and denied the defendant’s motion to suppress, but this Court found no reasonable suspicion and reversed. Id. at 140, 446 S.E.2d at 585. Ultimately, our Supreme Court reversed, finding that reasonable suspicion was not required because no stop or seizure occurred under the Fourth Amendment. Id. at 140-42, 446 S.E.2d at 585-86. The Supreme Court found “no evidence tending to show either that [the SBI agent] made a physical application of force or that the defendant submitted to any show of force.” Id. at 142, 446 S.E.2d at 586. Moreover, “there was no indication from the evidence that a reasonable person in the position of the defendant would have believed that he or she was not free to leave or otherwise terminate the encounter.” Id. at 142, 446 S.E.2d at 586. We reach the same conclusion in this case.”


Rios v. United States, 364 U.S. 253, 261-262 (1960): “The seizure can survive constitutional inhibition only upon a showing that the surrounding facts brought it within one of the exceptions to the rule that a search must rest upon a search warrant. Jones v. United States, 357 U. S. 493, 357 U. S. 499; United States v. Jeffers, 342 U. S. 48, 342 U. S. 51. Here, justification is primarily sought upon the claim that the search was an incident to a lawful arrest. Yet upon no possible view of the circumstances revealed in the testimony of the Los Angeles officers could it be said that there existed probable cause for an arrest at the time the officers decided to alight from their car and approach the taxi in which the petitioner was riding. Compare Brinegar v. United States, 338 U. S. 160; Carroll v. United States, 267 U. S. 132; Henry v. United States, 361 U. S. 98. This the Government concedes.

If, therefore, the arrest occurred when the officers took their positions at the doors of the taxicab, then nothing that happened thereafter could make that arrest lawful, or justify a search as its incident. United States v. Di Re, 332 U. S. 581; Johnson v. United States, 333 U. S. 10; Miller v. United States, 357 U. S. 301; Henry v. United States, 361 U. S. 98. But the Government argues that the policemen approached the standing taxi only for the purpose of routine interrogation, and that they had no intent to detain the petitioner beyond the momentary requirements of such a mission. If the petitioner thereafter voluntarily revealed the package of narcotics to the officers’ view, a lawful arrest could then have been supported by their reasonable cause to believe that a felony was being committed in their presence.”

State of Arizona v. Gunter, 100 Ariz. 356, 359-361 (1966): “However, we are in agreement that our statute is a codification of the common law. On arrests the United States Supreme Court has said:

“But we are pressed with the argument that if the search of the automobile discloses the presence of liquor and leads under the statute to the arrest of the person in charge of the automobile, the right of seizure should be limited by the common-law rule as to the circumstances justifying an arrest without a warrant for a misdemeanor. The usual rule is that a police officer may arrest without warrant one believed by the officer upon reasonable cause to have been guilty of a felony, and that he may only arrest without a warrant one guilty of a misdemeanor if committed in his presence. Kurtz v. Moffitt, 115 U.S. 487, 6 S.Ct. 148, 29 L.Ed. 458; John Bad Elk v. United States, 177 U.S. 529, 20 S.Ct. 729, 44 L.Ed. 874. The rule is sometimes expressed as follows:

‘In cases of misdemeanor, a peace officer like a private person has at common law no power of arresting without a warrant except when a breach of the peace has been committed in his presence or there is reasonable ground for supposing that a breach of peace is about to be committed or renewed in his presence.’ Halsbury’s Laws of England, vol. 9, part. III, 612.” Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543. . . .

In Rios v. United States, 364 U.S. 253, 261, 80 S.Ct. 1431, 1436, 4 L.Ed.2d 1688, the court said:

“[A] seizure can survive constitutional inhibition only upon a showing that the surrounding facts brought it within one of the exceptions to the rule that a search must rest upon a search warrant. Jones v. United States, 357 U.S. 493, 499, [78 S.Ct. 1253, 1257, 2 L.Ed.2d 1514]; United States v. Jeffers, 342 U.S. 48, 51, [72 S.Ct. 93, 95, 96 L.Ed. 59].”

Defendant fails to recognize the valid distinction between an arrest on the one hand and police investigation on the other. Escobedo v. State of Illinois, 378 U.S. 478, 485, 492, 84 S.Ct. 1758, 1762, 1766, 12 L.Ed. 977, 982, 987; Haynes v. State of Washington, 373 U.S. 503, 519, 83 S.Ct. 1336, 1346, 10 L.Ed. 513; Spano v. New York, 360 U.S. 315, 327, 79 S.Ct. 1202, 1209, 3 L.Ed. 1265, 1274. We believe a police officer acting as a reasonable man under the circumstances may detain and question a person when necessary to a proper discharge of his duties.

While it is often difficult to draw the line between investigation on the one hand and an arrest on the other, it will not suffice for an accused to contend that merely because investigation may lead to arrest the courts must surround investigations with the same requisites necessary for the arrest. Circumstances short of probable cause to make an arrest may still justify an investigation. Should the investigation then reveal probable cause to make an arrest, the officer may make an arrest and conduct a reasonable search incidental thereto. It strikes a balance between the individual interest in immunity from police interference and the community’s interest in law enforcement. It wards off pressure to equate reasonable cause to investigate with reasonable cause to arrest, thus protecting the innocent from the risk of arrest when no more than reasonable investigation is justified.

In the case before us the police had probable cause to seek out the defendant for an explanation as to his dangerous conduct in discharging a shotgun in a public place. Their initial conduct in halting him for investigation was not, therefore, improper. When defendant failed to produce a driver's license he had violated 64-13-49, New Mexico Statutes 1953.”

Law enforcement personnel may serve felony warrants at any time day or night upon any location; however, misdemeanor or infraction warrants may not be served between the hours of 10:00p.m. and 6:00a.m., unless the warrant is served upon the arrestee (1) in conjunction with another warrant being served upon that individual under California Penal Code Sections 836 or 837, (2) while in public, (3) when already in custody for another lawful arrest, or (4) when the warrant stipulates that night-service has been authorized, (CPC § 840.)

[Weston White]

UNDERSTANDING YOUR MIRANDA WARNING

The Miranda warning or rule is applicable to every individual that is in-custody under the authority of law enforcement personnel. In order for statements made by any person while in police custody to be admissible in court or during criminal proceedings, the individual must first be Mirandized prior to the start of a custodial interrogation or questioning—all statements provided to law enforcement personal, self-incriminating or otherwise, are thereafter admissible as evidence against them throughout the course of a trail. The Miranda rule provides four notifications to the accused (founded by both the Fifth and Sixth Amendments): (1) the right to consult with an attorney, (2) the right to not respond to questioning, (3) the right to voluntarily waive either of the foregoing rights, and (4) that the interrogation or questioning cannot continue until the stated warning has been both acknowledged and understood. Miranda v. Arizona, 384 U.S. 436 (1966)

Keep in mind that law enforcement personnel may seek to interrogate an individual without first providing them a Miranda warning, for which they may then take action based upon that newly acquired information; however, those very statements cannot be used against that individual at any point during their own criminal trial.

Berghuis v. Thompkins, 560 U.S. 370 (2010) requires for an individual being held in the custody of law enforcement personnel to expressly state that they are exercising their right to either consult with their attorney and/or remain silent; otherwise law enforcement personnel may continue conducting their interrogation, and all such rights are presumed to have been waived by that individual, consequently rendering any statements made afterward admissible as legally valid evidence against them during trial.

The contextual guidelines for Miranda warnings provide that the process of being Mirandized, generally at the time of arrest, consist of:

“The person in custody must, prior to interrogation, be clearly informed that he/she has the right to remain silent, and that anything the person says will be used against that person in court; the person must be clearly informed that he/she has the right to consult with an attorney and to have that attorney present during questioning, and that, if he/she is indigent, an attorney will be provided at no cost to represent him/her.”

Being Mirandized requires no specific use of verbiage or contextual order, only that the requisite information be unambiguously and wholly conveyed. California v. Prysock, 453 U.S. 355 (1981)


Justice White DISSENTING in Escobedo v. Illinois, 378 U.S. 478, 499 (1964): “The Court may be concerned with a narrower matter: the unknowing defendant who responds to police questioning because he mistakenly believes that he must and that his admissions will not be used against him. . . . The failure to inform an accused that he need not answer and that his answers may be used against him is very relevant indeed to whether the disclosures are compelled. Cases in this Court, to say the least, have never placed a premium on ignorance of constitutional rights. If an accused is told he must answer and does not know better, it would be very doubtful that the resulting admissions could be used against him. When the accused has not been informed of his rights at all, the Court characteristically and properly looks very closely at the surrounding circumstances.”

[Weston White]

LIMITED EXEMPTIONS FROM DISCLOSURE, DISCOVERY, OR TESTIMONY

Attorney client privilege: With exception to intentional threats of grave violence or death directed at others by an attorney’s client, everything a client states or turns over to the custody of their attorney is to remain confidential, until this privilege is voluntarily waived by the client themselves.

Communications to clergymen: This functions similarly as attorney-client privilege, requiring only the disclosure of stated threats of grave violence or death directed at others.

National security: This pertains exclusively to the National Security Act of 1947, which prevents individuals possessing knowledge or evidence of ‘state-secrets’ or ‘classified information’ from disclosing all such information to the public, including governmental agents lacking the appropriate security-clearance; including aspects of military security, environmental security, energy security, and economic security.

Physician-patient privilege: This provides only very limited protection during civil actions and zero protection during criminal proceedings (e.g., California Evidence Code §§ 996, 997, 998, et al.) Regardless, this privilege is not at all recognized within the Federal Rules of Evidence.

Psychotherapist-patient privilege: This privilege is vastly complex; however, encapsulating it is:

The Tarasoff rule, mandates the ‘duty to warn’ law enforcement personnel in all instances involving patients that have communicated a serious intention of physical violence against a specifically identifiable victim or victims, Tarasoff v. Regents of the University of California, 17 Cal. 3d 425 (1976), also including notifications made to a patient’s doctor through concerned third-parties, Ewing v. Goldstein, 120 Cal. App. 4th 807 (2004]) and Ewing v. Northridge Hospital Medical Center, 120 Cal. App. 4th 1289 (2004);

Further upheld under Rule 501 of the Federal Rules of Evidence, Jaffee v. Redmond, 518 U.S. 1 (1996);

Section 215 of the Patriot Act of 2001, decrees that all books, records, papers, documents, and other items pertaining to a patient of interest be secretly turned over to the Federal Bureau of Investigation (FBI) upon demand, while legally prohibiting that therapist from disclosing to the patient that the FBI has sought or obtained such items from their practice;

The Child Abuse and Neglect Reporting Act (CANRA), California Penal Code (PC) §§ 11164 through 11174.3, permitting for the permissive reporting of a child’s mental suffering, emotional wellbeing, or abuse;

The Elder Abuse and Dependent Adult Civil Protection Act, California Welfare and Institutions Code (WIC) §§ 15600 through 15659, permitting for the permissive reporting as above, although in the context of the elderly and dependent care adults;

Under California Evidence Code § 1024, therapists are legally permitted to breach their confidentiality requirements in instances where they believe it necessary in order to prevent the realization of dangerous actions or threatening behaviors stated by a patient; however, no mandated reporting duties exist in circumstances involving: threats made by non-patients, threats directed at the patient, or when the patient is merely feeling suicidal;

Further exemptions providing for the breaching of confidentiality are obliged under California Civil Code § 56.10(b):
A court pursuant to an order of that court;
A board, commission, or administrative agency for purposes of adjudication pursuant to its lawful authority;
A party to a proceeding before a court or administrative agency pursuant to a subpoena (this section does not, however, address the applicability of the psychotherapist-patient privilege);
An arbitrator or arbitration panel, when arbitration is lawfully requested by either party, pursuant to a subpoena (again note the applicability of the psychotherapist-patient privilege), or any other provision authorizing discovery in a proceeding before an arbitrator or arbitration panel;
A search warrant lawfully issued to a governmental law enforcement agency;
The patient or the patient's representative pursuant to a request for patient records in accordance with the Health and Safety Code;
A coroner, when the patient is the decedent and is the subject of the investigation, or;
When otherwise specifically required by law.
Moreover expanding into the area of health care services or emergencies, hospitalizations, patient information, etc., is covered within California Civil Code § 56.10(c).

Spousal privilege: Lawfully married individuals enjoy the right to privileged communications—this right must be invoked by either spouse, and may be voluntarily terminated by either partner at any time. It is intended to prevent one spouse from testifying about any confidential communications made while married and thereby uphold the sanctity of their private relationship.

Trade secrets: Pertain to designs, formulas, information, instruments, mixtures, patterns, processes, etc., which are closely held in absolute confidence by private businesses. Trade secrets may be referred to appropriately as ‘confidential information’ possessing financial worth to its holders. Trade secrets are legally defined under 18 USC § 1839(3)(A),(B) as possessing three core considerations:

1. Information;
2. Reasonable measures taken to protect the information, and;
3. Which derives independent economic value from not being publicly known.

Work product: This includes all documents and records produced in preparation for trail; the entirety of this information is excluded from the discovery process.

[Weston White]

PUBLIC SPEECH: THE TIME, PLACE, AND MANNER RULE

Justice Oliver Holmes writing in 1907 clarified that the primary purpose of the First Amendment was “to prevent all such previous restraints upon publications as had been practiced by other governments”. Restrictions imposed upon the time, place, or manner of public speech or protest through municipal ordinances is required under the guidelines provided in Ward v. Rock Against Racism, 491 U.S. 781 (1989) to be each of:

a) Content neutral;
b) Narrowly tailored;
c) Serve a significant governmental interest, and;
d) Provide ample means of alternative communication.

Municipal codes may only effect prior restraint upon acts of speech or protest that will “surely result in direct, immediate, and irreparable damage to our Nation and its people” (New York Times Co. v. United States, 403 U.S. 713 (1971); Near v. Minnesota, 283 U.S. 697 (1931)). For a municipality to pre-restrain such speech it must through a valid act of public law:

a) Clearly define what is being made illegal;
b) Define the minimal context or amount necessary to effect a lawful violation;
c) Provide case law that is supportive to the ordinance’s contextual scope, and;
d) Bear the burden of both filing suit and proving wrongdoing within the context of New York Times Co. v. United States, supra.

The recent concept of “Free Speech Zones”, whereby only a single “zone” is ever reserved, often as a cordoned off area that is comprised (perhaps ironically) of merely a chain-link fence or a concrete barrier enclosure that is located external to and far from the primary event being attended (e.g., two-blocks over and in a back alleyway), is historically proffered only to civil libertarians, those with messages in opposition to either the mainstream or government’s agenda, Tea Party types, and the like. In its present format such Free Speech Zones are designed to be greatly restrictive to the competing views of expressive free-speech, serving to “chill” every individual’s immutable rights for individual education, thought, self-expression, and social awareness—it would be entirely another case if a myriad of similar zones were to be provided for within the primary event being attended, therein specifying zones for individual messages with indifference, similarly to how display booths are provided to trade shows, supplier events, merchandise swap-malls, automotive exhibitions, etc.

Setting content-based restrictions on public speech or protest through municipal ordinances that oblige general restrictiveness must pass strict scrutiny, while municipal ordinances that oblige specific restrictiveness must pass a highest level of scrutiny—with exception to exclusions realized under case law, such as: Snyder v. Phelps, 09-751 (2011); Legal Services Corp. v. Velazquez, 531 U.S. 533 (2001); Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995); et al. For instance, Snyder, supra, acknowledged that content-based and content-neutral restrictions are determinable within the speaker’s own message, as to whether or not consideration to the ordinance imposed restriction would have applied under identical circumstances although the speech had differed contextually, stating: “A group of parishioners standing at the very spot where Westboro stood, holding signs that said “God Bless America” and “God Loves You,” would not have been subjected to liability. It was what Westboro said that exposed it to tort damages.” In Rosenberger, supra, the Court found that while governments may support mediums adherent to its own messages, such mediums however, may not impose exclusions against qualifying opposition (e.g., governmental subsidies may not be discriminatorily granted.) Further in Snyder, supra: “Given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to “special protection” under the First Amendment. Such speech cannot be restricted simply because it is upsetting or arouses contempt. “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U. S. 397, 414 (1989). Indeed, “the point of all speech protection … is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful.” Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 574 (1995).”


Ward v. Rock Against Racism, 491 U.S. 781, 796-797, 799 (1989): “The city’s regulation is also “narrowly tailored to serve a significant governmental interest.” Community for Creative Non-Violence, 468 U.S. at 468 U. S. 293. Despite respondent’s protestations to the contrary, it can no longer be doubted that government “ha[s] a substantial interest in protecting its citizens from unwelcome noise.” [CITATIONS OMITTED] . . .

This “less-restrictive-alternative analysis . . . has never been a part of the inquiry into the validity of a time, place, and manner regulation.”

Regan v. Time, Inc., 468 U. S. 641, 468 U. S. 657 (1984) (opinion of WHITE, J.). Instead, our cases quite clearly hold that restrictions on the time, place, or manner of protected speech are not invalid “simply because there is some imaginable alternative that might be less burdensome on speech.” United States v. Albertini, 472 U. S. 675, 472 U. S. 689 (1985). . . .

Lest any confusion on the point remain, we reaffirm today that a regulation of the time, place, or manner of protected speech must be narrowly tailored to serve the government's legitimate, content-neutral interests, but that it need not be the least restrictive or least intrusive means of doing so. To be sure, this standard does not mean that a time, place, or manner regulation may burden substantially more speech than is necessary to further the government's legitimate interests. Government may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals. . . .

Rather, the requirement of narrow tailoring is satisfied “so long as the . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.” United States v. Albertini, supra, at 472 U. S. 689; see also Community for Creative Non-Violence, supra, at 468 U. S. 297.”


Texas v. Johnson, 491 U.S. 397, 401 (1989): “Acknowledging that this Court had not yet decided whether the Government may criminally sanction flag desecration in order to preserve the flag’s symbolic value, the Texas court nevertheless concluded that our decision in West Virginia Board of Education v. Barnette, 319 U. S. 624 (1943), suggested that furthering this interest by curtailing speech was impermissible. “Recognizing that the right to differ is the centerpiece of our First Amendment freedoms,” the court explained, “a government cannot mandate by fiat a feeling of unity in its citizens. Therefore, that very same government cannot carve out a symbol of unity and prescribe a set of approved messages to be associated with that symbol when it cannot mandate the status or feeling the symbol purports to represent.”

755 S.W.2d at 97. Noting that the State had not shown that the flag was in “grave and immediate danger,” Barnette, supra, at 639, of being stripped of its symbolic value, the Texas court also decided that the flag’s special status was not endangered by Johnson’s conduct. 755 S.W.2d at 97.

As to the State’s goal of preventing breaches of the peace, the court concluded that the flag desecration statute was not drawn narrowly enough to encompass only those flag burnings that were likely to result in a serious disturbance of the peace. And in fact, the court emphasized, the flag burning in this particular case did not threaten such a reaction. “Serious offense' occurred,” the court admitted, ‘but there was no breach of peace, nor does the record reflect that the situation was potentially explosive. One cannot equate ‘serious offense’ with incitement to breach the peace.’”


Boos v. Barry, 485 U.S. 312, 320-322 (1988): “We most recently considered the definition of a content-neutral statute in Renton v. Playtime Theatres, Inc., 475 U. S. 41 (1986). Drawing on prior decisions, we described “‘content-neutral’ speech restrictions as those that ‘are justified without reference to the content of the regulated speech.’ Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 425 U. S. 771 (1976) (emphasis added).”

Id. at 475 U. S. 48. The regulation at issue in Renton described prohibited speech by reference to the type of movie theater involved, treating “theaters that specialize in adult films differently from other kinds of theaters.” Id. at 475 U. S. 47. But while the regulation in Renton applied only to a particular category of speech, its justification had nothing to do with that speech. The content of the films being shown inside the theaters was irrelevant, and was not the target of the regulation. Instead, the ordinance was aimed at the “secondary effects of such theaters in the surrounding community,” ibid. (emphasis in original), effects that are almost unique to theaters featuring sexually explicit films, i.e., prevention of crime, maintenance of property values, and protection of residential neighborhoods. In short, the ordinance in Renton did not aim at the suppression of free expression.

Respondents attempt to bring the display clause within Renton by arguing that here, too, the real concern is a secondary effect, namely, our international law obligation to shield diplomats from speech that offends their dignity. We think this misreads Renton. We spoke in that decision only of secondary effects of speech, referring to regulations that apply to a particular category of speech because the regulatory targets happen to be associated with that type of speech. So long as the justifications for regulation have nothing to do with content, i.e., the desire to suppress crime has nothing to do with the actual films being shown inside adult movie theaters, we concluded that the regulation was properly analyzed as content-neutral.

Regulations that focus on the direct impact of speech on its audience present a different situation. Listeners’ reactions to speech are not the type of “secondary effects” we referred to in Renton. To take an example factually close to Renton, if the ordinance there was justified by the city's desire to prevent the psychological damage it felt was associated with viewing adult movies, then analysis of the measure as a content-based statute would have been appropriate. The hypothetical regulation targets the direct impact of a particular category of speech, not a secondary feature that happens to be associated with that type of speech.

Applying these principles to the case at hand leads readily to the conclusion that the display clause is content-based. The clause is justified only by reference to the content of speech. Respondents and the United States do not point to the “secondary effects” of picket signs in front of embassies. They do not point to congestion, to interference with ingress or egress, to visual clutter, or to the need to protect the security of embassies. Rather, they rely on the need to protect the dignity of foreign diplomatic personnel by shielding them from speech that is critical of their governments. This justification focuses only on the content of the speech and the direct impact that speech has on its listeners. The emotive impact of speech on its audience is not a “secondary effect.” Because the display clause regulates speech due to its potential primary impact, we conclude it must be considered content-based.

Our cases indicate that as a content-based restriction on political speech in a public forum, § 22-1115 must be subjected to the most exacting scrutiny. Thus, we have required the State to show that the “regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.” Perry Education Assn. v. Perry Local Educators’ Assn., 460 U.S. at 460 U. S. 45. [CITATIONS OMITTED]

We first consider whether the display clause serves a compelling governmental interest in protecting the dignity of foreign diplomatic personnel. Since the dignity of foreign officials will be affronted by signs critical of their governments or governmental policies, we are told, these foreign diplomats must be shielded from such insults in order to fulfill our country’s obligations under international law.

As a general matter, we have indicated that, in public debate, our own citizens must tolerate insulting, and even outrageous, speech in order to provide “adequate breathing space’ to the freedoms protected by the First Amendment.” Hustler Magazine, Inc. v. Falwell, ante at 485 U. S. 56. See also e.g., New York Times Co. v. Sullivan, 376 U.S. at 376 U. S. 270. A “dignity” standard, like the “outrageousness” standard that we rejected in Hustler, is so inherently subjective that it would be inconsistent with “our longstanding refusal to [punish speech] because the speech in question may have an adverse emotional impact on the audience.” Hustler Magazine, supra, at 485 U. S. 55.”


United States v. Albertini, 472 U.S. 675, 685 (1985): “As this Court later observed in Greer, the decision in Flower must be viewed as an application of established First Amendment doctrine concerning expressive activity that takes place in a municipality’s open streets, sidewalks, and parks. 424 U.S. at 424 U. S. 835-836.”


Greer v. Spock, 424 U.S. 828, 835-836 (1976): “The decision in Flower was thus based upon the Court’s understanding that New Braunfels Avenue was a public thoroughfare in San Antonio no different from all the other public thoroughfares in that city, and that the military had not only abandoned any right to exclude civilian vehicular and pedestrian traffic from the avenue, but also any right to exclude leafleteers – “any claim [of] special interests in who walks, talks, or distributes leaflets on the avenue.”

That being so, the Court perceived the Flower case as one simply falling under the long-established constitutional rule that there cannot be a blanket exclusion of First Amendment activity from a municipality’s open streets, sidewalks, and parks for the reasons stated in the familiar words of Mr. Justice Roberts in Hague v. CIO, 307 U. S. 496, 307 U. S. 515-516:

“Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.” [CITATIONS OMITTED]”


Grayned v. City of Rockford, 408 U.S. 104, 114-119 (1972): “A clear and precise enactment may nevertheless be “overbroad” if, in its reach, it prohibits constitutionally protected conduct. Although appellant does not claim that, as applied to him, the anti-noise ordinance has punished protected expressive activity, he claims that the ordinance is overbroad on its face. Because overbroad laws, like vague ones, deter privileged activity, our cases firmly establish appellant’s standing to raise an overbreadth challenge. The crucial question, then, is whether the ordinance sweeps within its prohibitions what may not be punished under the First and Fourteenth Amendments. Specifically, appellant contends that the Rockford ordinance unduly interferes with First and Fourteenth Amendment rights to picket on a public sidewalk near a school. We disagree.

“In considering the right of a municipality to control the use of public streets for the expression of religious [or political] views, we start with the words of Mr. Justice Roberts that”

“Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thought between citizens, and discussing public questions.”

“Hague v. CIO, 307 U. S. 496, 307 U. S. 515 (1939).”

Kunz v. New York, 340 U. S. 290, 340 U. S. 293 (1951). See Shuttlesworth v. Birmingham, 394 U. S. 147, 394 U. S. 152 (1969). The right to use a public place for expressive activity may be restricted only for weighty reasons.

Clearly, government has no power to restrict such activity because of its message. Our cases make equally clear, however, that reasonable “time, place and manner” regulations may be necessary to further significant governmental interests, and are permitted. For example, two parades cannot march on the same street simultaneously, and government may allow only one. Cox v. New Hampshire, 312 U. S. 569, 312 U. S. 576 (1941). A demonstration or parade on a large street during rush hour might put an intolerable burden on the essential flow of traffic, and for that reason could be prohibited. Cox v. Louisiana, 379 U.S. at 379 U. S. 554. If overamplified loudspeakers assault the citizenry, government may turn them down. Kovacs v. Cooper, 336 U. S. 77 (1949); Saia v. New York, 334 U. S. 558, 334 U. S. 562 (1948). Subject to such reasonable regulation, however, peaceful demonstrations in public places are protected by the First Amendment. Of course, where demonstrations turn violent, they lose their protected quality as expression under the First Amendment. The nature of a place, “the pattern of its normal activities, dictate the kinds of regulations of time, place, and manner that are reasonable.” Although a silent vigil may not unduly interfere with a public library, Brown v. Louisiana, 383 U. S. 131 (1966), making a speech in the reading room almost certainly would. That same speech should be perfectly appropriate in a park. The crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time. Our cases make clear that, in assessing the reasonableness of a regulation, we must weigh heavily the fact that communication is involved; the regulation must be narrowly tailored to further the State’s legitimate interest. Access to the “streets, sidewalks, parks, and other similar public places . . . for the purpose of exercising [First Amendment rights] cannot constitutionally be denied broadly. . . .”

Free expression “must not, in the guise of regulation, be abridged or denied.”

In light of these general principles, we do not think that Rockford's ordinance is an unconstitutional regulation of activity around a school. Our touchstone is Tinker v. Des Moines School District, 393 U. S. 503 (1969), in which we considered the question of how to accommodate First Amendment rights with the “special characteristics of the school environment.” Id. at 393 U. S. 506. Tinker held that the Des Moines School District could not punish students for wearing black armbands to school in protest of the Vietnam war. Recognizing that “wide exposure to . . . robust exchange of ideas” is an “important part of the educational process” and should be nurtured, id. at 393 U. S. 512, we concluded that free expression could not be barred from the school campus. We made clear that "undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression," id. at 393 U. S. 508, and that particular expressive activity could not be prohibited because of a “mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint,” id. at 393 U. S. 509. But we nowhere suggested that students, teachers, or anyone else has an absolute constitutional right to use all parts of a school building or its immediate environs for his unlimited expressive purposes. Expressive activity could certainly be restricted, but only if the forbidden conduct “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” Id. at 393 U. S. 513. The wearing of armbands was protected in Tinker because the students “neither interrupted school activities nor sought to intrude in the school affairs or the lives of others. They caused discussion outside of the classrooms, but no interference with work and no disorder.”

Id. at 393 U. S. 514. Compare Burnside v. Byars, 363 F.2d 744 (CA5 1966), and Butts v. Dallas Ind. School District, 436 F.2d 728 (CA5 1971), with Blackwell v. Issaquena County Board of Education, 363 F.2d 749 (CA5 1966).

Just as Tinker made clear that school property may not be declared off limits for expressive activity by students, we think it clear that the public sidewalk adjacent to school grounds may not be declared off limits for expressive activity by members of the public. But in each case, expressive activity may be prohibited if it “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” Tinker v. Des Moines School District, 393 U.S. at 393 U. S. 513.

We would be ignoring reality if we did not recognize that the public schools in a community are important institutions, and are often the focus of significant grievances. [Footnote 40] Without interfering with normal school activities, daytime picketing and handbilling on public grounds near a school can effectively publicize those grievances to pedestrians, school visitors, and deliverymen, as well as to teachers, administrators, and students. Some picketing to that end will be quiet and peaceful, and will in no way disturb the normal functioning of the school. For example, it would be highly unusual if the classic expressive gesture of the solitary picket disrupts anything related to the school, at least on a public sidewalk open to pedestrians. On the other hand, schools could hardly tolerate boisterous demonstrators who drown out classroom conversation, make studying impossible, block entrances, or incite children to leave the schoolhouse.

[Footnote 40] Cf. Thornhill v. Alabama, 310 U.S. at 310 U. S. 102. It goes without saying that “one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.” Schneider v. State, 308 U.S. at 308 U. S. 163.”


Flower v. United States, 407 U.S. 197, 198-199 (1972): “The street is an important traffic artery used freely by buses, taxi cabs and other public transportation facilities, as well as by private vehicles, and its sidewalks are used extensively at all hours of the day by civilians, as well as by military personnel. Fort Sam Houston was an open post; the street, New Braunfels Avenue, was a completely open street.”

452 F.2d at 90. Under such circumstances, the military has abandoned any claim that it has special interests in who walks, talks, or distributes leaflets on the avenue. The base commandant can no more order petitioner off this public street because he was distributing leaflets than could the city police order any leafleteer off any public street. Cf. Lovell v. City of Griffin, 303 U. S. 444 (1938); Schneider v. State, 308 U. S. 147 (1939). “[S]treets are natural and proper places for the dissemination of information and opinion,” 308 U.S. at 308 U. S. 163.

“[O]ne who is rightfully on a street which the state has left open to the public carries with him there, as elsewhere, the constitutional right to express his views in an orderly fashion.” Jamison v. Texas, 318 U. S. 413, 318 U. S. 416 (1943).”


Martin v. City of Struthers, 319 U.S. 141, 145-149 (1943): “While door-to-door distributors of literature may be either a nuisance or a blind for criminal activities, they may also be useful members of society engaged in the dissemination of ideas in accordance with the best tradition of free discussion. The widespread use of this method of communication by many groups espousing various causes attests its major importance.

“Pamphlets have proved most effective instruments in the dissemination of opinion. And perhaps the most effective way of bringing them to the notice of individuals is their distribution at the homes of the people.”

Schneider v. State, supra, 308 U. S. 164. Many of our most widely established religious organizations have used this method of disseminating their doctrines, and laboring groups have used it in recruiting their members. The federal government, in its current war bond selling campaign, encourages groups of citizens to distribute advertisements and circulars from house to house. Of, course, as every person acquainted with political life knows, door to door campaigning is one of the most accepted techniques of seeking popular support, while the circulation of nominating papers would be greatly handicapped if they could not be taken to the citizens in their homes. Door-to-door distribution of circulars is essential to the poorly financed causes of little people.

Freedom to distribute information to every citizen wherever he desires to receive it is so clearly vital to the preservation of a free society that, putting aside reasonable police and health regulations of time and manner of distribution, it must be fully preserved. The dangers of distribution can so easily be controlled by traditional legal methods, leaving to each householder the full right to decide whether he will receive strangers as visitors, that stringent prohibition can serve no purpose but that forbidden by the Constitution, the naked restriction of the dissemination of ideas.

Traditionally, the American law punishes persons who enter onto the property of another after having been warned by the owner to keep off. General trespass after warning statutes exist in at least twenty states, while similar statutes of narrower scope are on the books of at least twelve states more. We know of no state which, as does the Struthers ordinance in effect, makes a person a criminal trespasser if he enters the property of another for an innocent purpose without an explicit command from the owners to stay away. The National Institute of Municipal Law Officers has proposed a form of regulation to its member cities which would make it an offense for any person to ring the bell of a householder who has appropriately indicated that he is unwilling to be disturbed. This or any similar regulation leaves the decision as to whether distributors of literature may lawfully call at a home where it belongs -- with the homeowner himself. A city can punish those who call at a home in defiance of the previously expressed will of the occupant and, in addition, can, by identification devices, control the abuse of the privilege by criminals posing as canvassers. In any case, the problem must be worked out by each community for itself with due respect for the constitutional rights of those desiring to distribute literature and those desiring to receive it, as well as those who choose to exclude such distributors from the home.”


Thornhill v. Alabama, 310 U.S. 88, 102, 105-106 (1940): “The Continental Congress, in its letter sent to the Inhabitants of Quebec (October 26, 1774), referred to the “five great rights,” and said:

“The last right we shall mention regards the freedom of the press. The importance of this consists, besides the advancement of truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government, its ready communication of thoughts between subjects, and its consequential promotion of union among them whereby oppressive officers are ashamed or intimidated into more honourable and just modes of conducting affairs.” Journal of the Continental Congress, 1904 ed., vol. I, pp. 104, 108. . . .

“[The] streets are natural and proper places for the dissemination of information and opinion, and one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.” Schneider v. State, 308 U. S. 147, 308 U. S. 161, 308 U. S. 163; Hague v. CIO, 307 U. S. 496, 307 U. S. 515-516.”


Hague v. Committee for Industrial Organization, 307 U.S. 496-497, 515-516, 518 (1939): “3. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied. Distinguishing Davis v. Massachusetts, 167 U. S. 43. P. 307 U. S. 515.

4. The ordinance here in question, which forbids public assembly in the streets or parks of the city without a permit from the Director of Safety, who may refuse such permit upon his mere opinion that such refusal will prevent “riots, disturbances or disorderly assemblage,” is void upon its face. P. 307 U. S. 516.

It does not make comfort or convenience in the use of the streets or parks the standard of official action, and can be made the instrument of arbitrary suppression of free expression of views on national affairs. Uncontrolled official suppression of the privilege of public assembly cannot be made a substitute for the duty to maintain order in connection with the exercise of the right.

5. The question whether exemption from the searches and seizures proscribed by the Fourth Amendment is afforded by the privileges and immunities clause of the Fourteenth is not involved. P. 307 U. S. 517.

6. An ordinance absolutely prohibiting distribution of circulars, handbills, placards, etc., in any street or public place is void. Lovell v. Griffin, 303 U. S. 444. P. 307 U. S. 518. . . .

We have no occasion to determine whether, on the facts disclosed, the Davis case was rightly decided, but we cannot agree that it rules the instant case. Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied. . . .

Paragraphs 2 and 3 enjoin interference with the distribution of circulars, handbills and placards. The decree attempts to formulate the conditions under which respondents and their sympathizers may distribute such literature free of interference. The ordinance absolutely prohibiting such distribution is void under our decision in Lovell v. Griffin, supra, and petitioners so concede. We think the decree goes too far. All respondents are entitled to is a decree declaring the ordinance void and enjoining the petitioners from enforcing it.

Paragraph 4 has to do with public meetings. Although the court below held the ordinance void, the decree enjoins the petitioners as to the manner in which they shall administer it. There is an initial command that the petitioners shall not place “any previous restraint” upon the respondents in respect of holding meetings, provided they apply for a permit as required by the ordinance. This is followed by an enumeration of the conditions under which a permit may be granted or denied. We think this is wrong. As the ordinance is void, the respondents are entitled to a decree so declaring and an injunction against its enforcement by the petitioners. They are free to hold meetings without a permit and without regard to the terms of the void ordinance. The courts cannot rewrite the ordinance, as the decree, in effect, does.

The bill should be dismissed as to all save the individual plaintiffs, and B, paragraphs 2, 3 and 4 of the decree should be modified as indicated. In other respects the decree should be affirmed.”


Lovell v. City of Griffin, 303 U.S. 444, 450-452 (1938): “Freedom of speech and freedom of the press, which are protected by the First Amendment from infringement by Congress, are among the fundamental personal rights and liberties which are protected by the Fourteenth Amendment from invasion by state action. [CITATIONS OMITTED] It is also well settled that municipal ordinances adopted under state authority constitute state action, and are within the prohibition of the amendment. [CITATIONS OMITTED]

The ordinance, in its broad sweep, prohibits the distribution of “circulars, handbooks, advertising, or literature of any kind.” It manifestly applies to pamphlets, magazines and periodicals. The evidence against appellant was that she distributed a certain pamphlet and a magazine called the “Golden Age.” Whether, in actual administration, the ordinance is applied, as apparently it could be, to newspapers does not appear. The City Manager testified that “everyone applies to me for a license to distribute literature in this City. None of these people (including defendant) secured a permit from me to distribute literature in the City of Griffin.”

The ordinance is not limited to “literature” that is obscene or offensive to public morals or that advocates unlawful conduct. There is no suggestion that the pamphlet and magazine distributed in the instant case were of that character. The ordinance embraces “literature” in the widest sense.

The ordinance is comprehensive with respect to the method of distribution. It covers every sort of circulation “either by hand or otherwise.” There is thus no restriction in its application with respect to time or place. It is not limited to ways which might be regarded as inconsistent with the maintenance of public order or as involving disorderly conduct, the molestation of the inhabitants, or the misuse or littering of the streets. The ordinance prohibits the distribution of literature of any kind at any time, at any place, and in any manner without a permit from the City Manager.

We think that the ordinance is invalid on its face. Whatever the motive which induced its adoption, its character is such that it strikes at the very foundation of the freedom of the press by subjecting it to license and censorship. The struggle for the freedom of the press was primarily directed against the power of the licensor. It was against that power that John Milton directed his assault by his “Appeal for the Liberty of Unlicensed Printing.” And the liberty of the press became initially a right to publish “without a license what formerly could be published only with one.” [Footnote 1] While this freedom from previous restraint upon publication cannot be regarded as exhausting the guaranty of liberty, the prevention of that restraint was a leading purpose in the adoption of the constitutional provision. See [CITATIONS OMITTED] Legislation of the type of the ordinance in question would restore the system of license and censorship in its baldest form.

The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. These indeed have been historic weapons in the defense of liberty, as the pamphlets of Thomas Paine and others in our own history abundantly attest. The press, in its historic connotation, comprehends every sort of publication which affords a vehicle of information and opinion. What we have had recent occasion to say with respect to the vital importance of protecting this essential liberty from every sort of infringement need not be repeated. [CITATIONS OMITTED] The ordinance cannot be saved because it relates to distribution, and not to publication.

“Liberty of circulating is as essential to that freedom as liberty of publishing; indeed, without the circulation, the publication would be of little value.” Ex parte Jackson, 96 U. S. 727, 96 U. S. 733. The license tax in Grosjean v. American Press Co., supra, was held invalid because of its direct tendency to restrict circulation.

As the ordinance is void on its face, it was not necessary for appellant to seek a permit under it.

[Footnote 1] See Wickwar, “The Struggle for the Freedom of the Press,” p. 15.”


Near v. Minnesota, 283 U.S. 697, 719-723 (1931): “Meanwhile, the administration of government has become more complex, the opportunities for malfeasance and corruption have multiplied, crime has grown to most serious proportions, and the danger of its protection by unfaithful officials and of the impairment of the fundamental security of life and property by criminal alliances and official neglect, emphasizes the primary need of a vigilant and courageous press, especially in great cities. The fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any the less necessary the immunity of the press from previous restraint in dealing with official misconduct. Subsequent punishment for such abuses as may exist is the appropriate remedy consistent with constitutional privilege.

In attempted justification of the statute, it is said that it deals not with publication per se, but with the “business” of publishing defamation. If, however, the publisher has a constitutional right to publish, without previous restraint, an edition of his newspaper charging official derelictions, it cannot be denied that he may publish subsequent editions for the same purpose. He does not lose his right by exercising it. If his right exists, it may be exercised in publishing nine editions, as in this case, as well as in one edition. If previous restraint is permissible, it may be imposed at once; indeed, the wrong may be as serious in one publication as in several. Characterizing the publication as a business, and the business as a nuisance, does not permit an invasion of the constitutional immunity against restraint. Similarly, it does not matter that the newspaper or periodical is found to be “largely” or “chiefly” devoted to the publication of such derelictions. If the publisher has a right, without previous restraint, to publish them, his right cannot be deemed to be dependent upon his publishing something else, more or less, with the matter to which objection is made.

Nor can it be said that the constitutional freedom from previous restraint is lost because charges are made of derelictions which constitute crimes. With the multiplying provisions of penal codes, and of municipal charters and ordinances carrying penal sanctions, the conduct of public officers is very largely within the purview of criminal statutes. The freedom of the press from previous restraint has never been regarded as limited to such animadversions as lay outside the range of penal enactments. Historically, there is no such limitation; it is inconsistent with the reason which underlies the privilege, as the privilege so limited would be of slight value for the purposes for which it came to be established.

The statute in question cannot be justified by reason of the fact that the publisher is permitted to show, before injunction issues, that the matter published is true and is published with good motives and for justifiable ends. If such a statute, authorizing suppression and injunction on such a basis, is constitutionally valid, it would be equally permissible for the legislature to provide that at any time the publisher of any newspaper could be brought before a court, or even an administrative officer (as the constitutional protection may not be regarded as resting on mere procedural details) and required to produce proof of the truth of his publication, or of what he intended to publish, and of his motives, or stand enjoined. If this can be done, the legislature may provide machinery for determining in the complete exercise of its discretion what are justifiable ends, and restrain publication accordingly. And it would be but a step to a complete system of censorship. The recognition of authority to impose previous restraint upon publication in order to protect the community against the circulation of charges of misconduct, and especially of official misconduct, necessarily would carry with it the admission of the authority of the censor against which the constitutional barrier was erected. The preliminary freedom, by virtue of the very reason for its existence, does not depend, as this Court has said, on proof of truth. Patterson v. Colorado, supra.

Equally unavailing is the insistence that the statute is designed to prevent the circulation of scandal which tends to disturb the public peace and to provoke assaults and the commission of crime. Charges of reprehensible conduct, and in particular of official malfeasance, unquestionably create a public scandal, but the theory of the constitutional guaranty is that even a more serious public evil would be caused by authority to prevent publication.

“To prohibit the intent to excite those unfavorable sentiments against those who administer the Government is equivalent to a prohibition of the actual excitement of them, and to prohibit the actual excitement of them is equivalent to a prohibition of discussions having that tendency and effect, which, again, is equivalent to a protection of those who administer the Government, if they should at any time deserve the contempt or hatred of the people, against being exposed to it by free animadversions on their characters and conduct.”

There is nothing new in the fact that charges of reprehensible conduct may create resentment and the disposition to resort to violent means of redress, but this well understood tendency did not alter the determination to protect the press against censorship and restraint upon publication. As was said in New Yorker Staats-Zeitung v. Nolan, 89 N.J. Eq. 387, 388, 105 Atl. 72:

“If the township may prevent the circulation of a newspaper for no reason other than that some of its inhabitants may violently disagree with it, and resent its circulation by resorting to physical violence, there is no limit to what may be prohibited.”

The danger of violent reactions becomes greater with effective organization of defiant groups resenting exposure, and if this consideration warranted legislative interference with the initial freedom of publication, the constitutional protection would be reduced to a mere form of words.

For these reasons we hold the statute, so far as it authorized the proceedings in this action under clause (b) of section one, to be an infringement of the liberty of the press guaranteed by the Fourteenth Amendment. We should add that this decision rests upon the operation and effect of the statute, without regard to the question of the truth of the charges contained in the particular periodical. The fact that the public officers named in this case, and those associated with the charges of official dereliction, may be deemed to be impeccable cannot affect the conclusion that the statute imposes an unconstitutional restraint upon publication.”

[Weston White]

SPEECH PROTECTED EXCLUSIONS

Child pornography: Meets a lesser standard than obscenity as further clarified in New York v. Ferber, 458 U.S. 747 (1982), under the following several points:

1) The government has a very compelling interest in preventing the sexual exploitation of children.
2) Distribution of visual depictions of children engaged in sexual activity is intrinsically related to the sexual abuse of children. The images serve as a permanent reminder of the abuse, and it is necessary for government to regulate the channels of distributing such images if it is to be able to eliminate the production of child pornography.
3) Advertising and selling child pornography provides an economic motive for producing child pornography.
4) Visual depictions of children engaged in sexual activity have negligible artistic value.
5) Thus, holding that child pornography is outside the protection of the First Amendment is consistent with the Court’s prior decisions limiting the banning of materials deemed “obscene” as the Court had previously defined it. For this reason, child pornography need not be legally obscene before being outlawed.

Commercial speech: Pertaining to a two-pronged (four-part) test, effecting commercial transactions (e.g., cigarette advertisement bans), as stipulated within Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980):

1. The regulated speech is fraudulent, misleading, or proposes an illegal transaction; or
2. All of the following elements are present:
a. The government’s interest in regulating the speech is substantial;
b. The restriction directly advances the government interest, and;
c. The restriction is no more extensive than necessary to advance the government interest.

Defamation: Including acts of printed libel and vocalized slander, resulting in intentional infliction of emotional distress. This exception is made more difficult to prove for both public figures and public officials, as the actual malice standard determined by New York Times Co. v. Sullivan, 376 U.S. 254 (1964) must be provable and awards for intentional emotional distress are prohibitive as per Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988). Defamation is a tort that obliges the protection of one’s reputation.

False statements or documents: Providing false statements under oath or affirmation, or as official testimony may result in one’s impeachment; or under certain jurisdictions, being criminally charged with rendering false statements, such as under federal law 18 U.S.C. § 1001 or California Vehicle Codes 20 or 31; rendering false or forged documents (California Vehicle Codes 472 or 4463); perjury (California Penal Code 118); obstruction or interference with the investigation of law enforcement (California Penal Code 148)(a)(1)); knowingly filing a false police report (California Penal Codes 148.3 or 148.5); etc.

Fighting words: Speech that is spiteful or inflammatory in nature, intending to irritate or cause a negative reaction within the hearer; likely resulting in a violent retaliation or breach the peace.

Imminent lawless action: Originating under the clear and present danger test that had been established in Schenck v. United States, 249 U.S. 47, 52 (1919), Justice Holmes having clarified: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force.” This test has since been modified in Brandenburg v. Ohio, 395 U.S. 444 (1969). Generally, this exception is itself restricted to apolitical speech.

Internet speech: In Reno v. American Civil Liberties Union, 521 U.S. 844 (1997) the Court found that the use of the Internet provides its users the full protection of the First Amendment, while having stricken down various sections of the Communications Decency Act of 1996. Furthermore, finding in Asscroft v. American Civil Liberties Union, 535 U.S. 564 (2002) that placing limitations upon Internet usage to be unconstitutional. Ergo, material published or viewed on the Internet is to be treated no differently than books, films, magazines, or speech.

Under the Children’s Internet Protection Act (CIPA) of 2000, public schools and libraries that participate in the receipt of federal e-rate discounts are required to install Internet filters that block content deemed inappropriate for viewing by children, in United States v. American Library Association, 539 U.S. 194 (2003)—including provisions of the CIPA itself—permits adults to merely make a request (e.g., under the ambiguously undefined phrase: “bona fide research” or otherwise of any lawful purpose) that the filter be temporarily disabled so that they can access any content otherwise restricted. However, public schools and libraries are required to comply without the requestor having to provide any reason, in following both respective federal law and subsequent case law. As stated in American Library Association, supra:

“Assuming that such erroneous blocking presents constitutional difficulties, any such concerns are dispelled by the ease with which patrons may have the filtering software disabled. When a patron encounters a blocked site, he need only ask a librarian to unblock it or (at least in the case of adults) disable the filter. As the District Court found, libraries have the capacity to permanently unblock any erroneously blocked site, id., at 429, and the Solicitor General stated at oral argument that a “library may ... eliminate the filtering with respect to specific sites ... at the request of a patron,” Tr. of Oral Arg. 4. With respect to adults, CIPA also expressly authorizes library officials to “disable” a filter altogether “to enable access for bona fide research or other lawful purposes.” 20 U. S. C. § 9134(f)(3) (disabling permitted for both adults and minors); 47 U. S. C. § 254(h)(6)(D) (disabling permitted for adults). The Solicitor General confirmed that a “librarian can, in response to a request from a patron, unblock the filtering mechanism altogether,” Tr. of Oral Arg. 11, and further explained that a patron would not “have to explain ... why he was asking a site to be unblocked or the filtering to be disabled,” id., at 4.” Subsequently, the FCC has instructed CIPA compliant schools and libraries to implement such procedures under FCC Order 03-188 (07/23/2003.)

Invasion of privacy: This exception includes the tort of false-light, which is applicable only to non-public parties, as in the case ofTime, Inc. v. Hill, 385 U.S. 374 (1967). Invasion of privacy is a tort that obliges the protection of one’s dignity, wellbeing, or mental health.

Obscenity: Generally, this test is restricted to hard-core pornography; however, it includes speech that greatly exceeds modern social standards so being “utterly without socially redeeming value”, following the three-pronged Miller test, in Miller v. California, 413 U.S. 15 (1973):

1) Whether “the average person, applying contemporary community standards”, would find that the work, taken as a whole, appeals to the prurient interest;
2) Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law, and;
3) Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Political campaign contributions: In Buckley v. Valeo, 424 U.S. 1 (1976) it was upheld that the government may impose certain restrictions on political contributions (i.e., pertaining to the Federal Election Campaign Act of 1974), while striking down several of its other provisions, such as restrictions imposed on political expenditures, having found that spending money to influence elections is a form of constitutionally protected free speech. This finding was further expanded within Citizens United v. Federal Election Comm’n, 08-205 (2010), to additionally consider independent political expenditures made by third-party lobbying groups, including non-profit organizations, labor unions, corporations, associations, and the like (i.e., pertaining to the Bipartisan Campaign Reform Act of 2002.)

Public speech, governmental and private employees: The speech of public employees (including the government’s private contractors) within the course of their official duties is not constitutionally protected and may itself be censored or disciplined, as per Garcetti v. Ceballos, 547 U.S. 410 (2006). However, as held in Pickering v. Board of Education, 391 U.S. 563 (1968), public employees are protected when speaking outside of their official capacity and in the positive interests of the public; neither is a private employee’s inappropriate speech is not protected from an employer’s just disciplinary action.

Student speech: Individualistic, free expression, while not limitless, does afford reasonable constitutional protections for all classes of public students, including those attending public colleges and universities, for example:
In Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), it was decided that public school children are in-fact afforded First Amendment protections, such as a school policy banning acts of wearing black armbands by antiwar students in protest of a (viz., illegal) war was declared unconstitutional; with exception to incidents where there is a “substantial interference with school discipline or the rights of others”.
Furthermore, in Stromberg v. California, 283 U.S. 359 (1931), the California Red Flag Law of 1919 was found to be unconstitutional under the Fourteenth Amendment—extending its constitutional protections onto the First Amendment.
A school dress code and literature distribution policy was struck down in Lowry v. Watson Chapel School District, 540 F.3d 752 (8th Cir. 2008), which had prohibited students from donning black armbands in protest of school policy—finding the school’s policies to be vague and unnecessarily prohibitive of criticism against the school district.
However, school policy may effect discipline against students for indecent, lewd, or obscene speech, such as in the case of Bethel School District v. Fraser, 478 U.S. 675 (1986), where a student was disqualified from election and suspended due to their double entendre, sex-charged campaign speech; and in Morse v. Frederick, 551 U.S. 393 (2007) a student’s suspension was upheld for displaying a “BONG HiTS 4 JESUS” banner during an off campus school event.
Hazelwood School District et al. v. Kuhlmeier et al., 484 U.S. 260 (1988) school district imposed policies may censor school newspapers that are not deemed open forums of student expression; however, such intended forums of open student expression are provided First Amendment protections.
In Guiles v. Marineau, 461 F.3d 320 (2d. Cir. 2006) affirmed that public school students may express their political views, such as wearing a shirt that mocks President George W. Bush by asserting that he enjoys abusing alcohol and narcotics.
Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993) found a school district’s prohibition against a church from on-campus viewings of films addressing family and parental issues to be wholly improper.
Downs v. Los Angeles Unified School District, 228 F.3d 1003 (9th. Cir. 2000), the court held that a high school bulletin-board was not a public forum for private speech, such as a sidewalk or public park, but only for government speech; thusly, the school board did not act inappropriately by denying a faculty’s request to post anti-homosexual material upon it.
True threats: Terroristic statements that are specific in context or directed at certain individuals. For example, in Virginia v. Black, 538 U.S. 343 (2003), it was found that the act of burning crosses in itself is not criminal, unless circumstances provide the act as a form of provable intimidation or threat; and in Watts v. United States, 394 U.S. 705-706, 708 (1969), exaggerated threatening or challenging statements must be reasonable construed from truly threatening statements, such as boisterously exclaiming at a political rally that: “They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L.B.J. [Followed by making a gesture of sighting down the barrel of a rifle.]”, further finding that: ‘But whatever the “willfullness” requirement implies, the statute initially requires the Government to prove a true “threat.” We do not believe that the kind of political hyperbole indulged in by petitioner fits within that statutory term. For we must interpret the language Congress chose “against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”’ And as notably stated by Justice Douglas in concurrence: “The charge in this case is of an ancient vintage. . . . The Alien and Sedition Laws constituted one of our sorriest chapters, and I had thought we had done with them forever.”

In Snyder v. Phelps, No. 09-751 (2011), it was held that outrageous speech made by an individual while on a public sidewalk, about public concerns, cannot be held liable under the tort of emotional distress.

Governmental regulations placed upon general forms of private speech must be crafted under the content-neutral rule, for example, municipal ordinances determining the public placement of news-racks with consideration to the public’s safety and aesthetics cannot intend to exclude less-established, albeit reasonably acceptable, forms of publication over those that are more popular.

Under the government speech doctrine—originally implied in Wooley v. Maynard, 430 U.S. 705 (1977)—the government is itself not required to remain viewpoint-neutral. For instance, the DEA in its fight to keep marijuana use outlawed it is not legally obligated to inform its populace of the potential benefits to be gained from consuming marijuana; the FDA has no requirement to discuss the pros and cons of ingesting organic, whole-foods versus genetically modified organisms (GMO); the FCC need not address the potential hazards of wireless communications or high-powered electrical lines; etc.

In Wooley, ibid., at 715, the Court held that New Hampshire could not constitutionally require its residents to display the state motto (i.e., “Live Free or Die”) upon the license plates of vehicles when that motto was found offensive to the morality of such individuals, stating: “New Hampshire’s statute in effect requires that appellees use their private property as a “mobile billboard” for the State’s ideological message -- or suffer a penalty… The First Amendment protects the right of individuals to hold a point of view different from the majority, and to refuse to foster, in the way New Hampshire commands, an idea they find morally objectionable.”

Rust v. Sullivan, 500 U.S. 173 (1991), it was held that Health and Human Services regulations prohibiting participating doctors from advocating, counseling, or referring their patients on the subject of abortions is not unconstitutional. In effect, determining that the government has simply chosen to fund one method of practice over another; and being that the doctors are in such instances being publicly funded, they are therefore speaking on behalf of the government.

Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995), held that a university’s denial of funding to a religious student publican that had meet all other funding requirements to be unconstitutional, and as having violated those student’s freedom of speech.

Legal Services Corp. v. Velazquez, 531 U.S. 533 (2001), the Court found federal funding restrictions levied against a private, nonprofit corporation established by Congress to be constitutionally invalid, violating the freedom of speech; as such restrictions were not viewpoint-neutral in the intended capacity of preventing attorneys from challenging a specific area of law (i.e., enacted provisions of federal welfare.) The underlying logic being that attorneys are legally obliged to speak, zealously, on the behalf of their clients and must be permitted to bring forth and represent those privately protected interests unfettered.

Johanns v. Livestock Marketing Association, 544 U.S. 550 (2005), held that the government may fund committees under legislation to establish the promotion and marketing of specified commerce, so long that the government retain final authority over those committees.

[Weston White]

UNLAWFUL ASSEMBLIES—California Penal Codes (CPC) §§ 407, 408, and 409

The California Supreme Court has held that dispersal orders rendered by law enforcement personnel upon intended lawful gatherings of two or more individuals are limited in application to “assemblies which are violent or which pose a clear and present danger of imminent violence.” (See: In re Brown (1973) 9 Cal.3d 612, 623; Collins v. Jordan (1996) 110 F.3d 1363, 1371.)

“They were told that ‘the right ... to peaceably assemble includes the right to communicate ideas by singing, chanting and shouting, as well as by signs, symbols and slogans,’ but that ’pickets shouting in unison in a loud and boisterous manner disturbing the peace and quiet of the neighborhood and thereby interfering with a complainant's peaceful enjoyment of property is unlawful conduct.’”

“The assembly must in fact be violent or pose an immediate threat of violence, an assembly that is “boisterous or tumultuous” does not establish a violation of the statute. The committee has therefore eliminated these words from the instruction since they are archaic and potentially confusing.”

* An unlawful assembly occurs when two or more people assemble together to commit a crime, or to otherwise do a lawful act in a violent manner—the assembly is not unlawful unless violence actually occurs or there is a clear and present danger that violence will occur immediately.

** A dispersal order becomes legally valid once it was been issued by a law enforcement officer. Providing that the order itself be lawful; sufficiently directs the assembly to leave from the surrounding area; while warning them to immediately disperse, in the name of the “People of the State”, through the use of unambiguous wording that “reasonable persons” will comprehend, and that the dispersal order be communicated in an official law enforcement capacity and manner that ensures it is clearly heard by all participating in the unlawful assembly.

[Weston White]

CITIZEN’S ARREST—California Penal Code (CPC) § 837

A resident may physically arrest another individual in the following instances (it should be noticed that these powers are generally identical to the powers granted to law enforcement personnel; however, are not nearly as expansive):
For a public offense committed or attempted in their presence (i.e., misdemeanor or felony);
When the individual arrested has committed a felony, although not in their presence, or;
When a felony has been in fact committed, and there is reasonable cause that the individual arrested had committed it.
* CPC § 16 defines crimes and public offenses to include: felonies, misdemeanors, and infractions.

Further notating that felony crimes generally include acts of: arson, battery resulting in serious bodily injury, burglary to non-vacant buildings or dwellings, carjacking or stolen vehicles, indecent exposure to child or child molestation by an adult, kidnapping, murder, rape, robbery, and thefts or vandalisms valued greater than $950 (or that involve thefts of firearms without consideration to value, or thefts valued at more than $250 of agricultural or aquacultural products or livestock.)

While California does not have Good Samaritan laws, CPC § 839, does provide authority to seek the aid of others under a request for assistance in effecting a citizen’s arrest (i.e., “Any person making an arrest may orally summon as many persons as he deems necessary to aid him therein.”)

The general process involved in making a citizen’s arrest include:

If you suspect the individual to be armed with a weapon or that they will likely become combative, then it is most likely better to remain at a safe distance while maintaining visual and acquiring a full description of each suspect, including race, gender, approximate age, height, build, clothing description (in order from head to legs); emphasizing any weapons or injuries involved; describing any vehicles involved, including approximate year, color, make, model, number of doors, unique features, license plate numbers, etc. Including informing 9-1-1 of the exact or approximate address, or otherwise a descriptive location of streets and major landmarks; followed by a quick summary of the entire incident, and providing victim details, descriptions, and current whereabouts.

Prior to making a citizen’s arrest, recount and verify the totality of facts surrounding the incident, thus ensuring that you have established valid probable cause to initiate the arrest action, otherwise you may face sustainable allegations of false imprisonment, kidnapping, assault and battery, or actionable torts, etc.

Always take care to never exert more force than necessary to effect a citizen’s arrest, as you can be held criminally or civilly liable for committing wrongdoing or negligence on your part. Furthermore, your inappropriate actions will not be protected in the same fashion as law enforcement personnel would otherwise be.

From the start of making a citizen’s arrest, it is imperative to clearly, calmly, and confidently instruct the suspect that you are placing them under citizen’s arrest, further explaining to them as to precisely why, paraphrasing the statutory authority and penal offense justifying your authority to do so, and that you have already or will be contacting local law enforcement immediately to have them taken into custody and establish a criminal complaint against them.

Kindly, emphasize to the suspect that as long as they do not make an effort to touch or use force against others who are involved in effecting the citizen’s arrest, no participant will make an effort to touch or use force against them. And make a request for their cooperation in the citizen’s arrest and for when law enforcement arrives.

If the suspect becomes physically aggressive it is best to then handcuff the individual or alternately to cautiously pin them to the ground within a safe, well lit area in open view of the public until the arrival of law enforcement—or to otherwise step back and request additional assistance from other willing bodies within the immediate area or reevaluate the situation, perhaps alternating to surveillance mode until the arrival of law enforcement. In the latter situation the better alternative is to request 9-1-1 personnel to remain on the phone with you until contact is made with law enforcement.

It is usually best to not risk devolving the situation into a physical one-on-one confrontation, instead only attempt to confront the suspect as a group of citizens using their bodies to surround the suspect to a confined area, designating one member of the group to directly address the suspect, while the others within the group communicate only to one another. And under no circumstances should the arrestee ever be restrained to an object or left unattended.

However, if you are unable or unprepared to manhandle or handcuff the arrestee it is best to place a silent call to law enforcement, taking care not to alert the suspects that law enforcement personnel are being dispatched to contact them.

In any case, immediately upon making a citizen’s arrest you must notify law enforcement personnel, either by dialing 9-1-1, or if a phone is unavailable, taking the arrestee to the nearest police station with jurisdiction for both the type of crime involved and location where it was committed.

Do not ever deny any requests for medical attention, if a medical concern is raised by the arrestee or others inform 9-1-1 personnel immediately so that an emergency medical crew can be dispatched and responding law enforcement notified of the evolving situation.

Unless it becomes apparent that suspect is armed with a weapon do not ever search their person for any property or unnecessarily remove any items from them—even at their request.

Do not express your anger toward the suspect, attempt to interrogate them, or read them their Miranda rights.

Remember that your sole purpose in making the citizen’s arrest is only to safely detain the suspect until the arrival of law enforcement.

Whenever possible, openly videotape the entirely of the citizen’s arrest, following through until the subject has been taken into the custody of law enforcement—be aware that covertly taping without consent of presumed ‘confidential communications’ (i.e., “includes any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering…, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded”) is a violation of CPC § 632.

[Weston White]

POSSESSING FIREARMS WHILE IN CALIFORNIA

[Weston White]

MAKING PRA AND FOIA REQUESTS

Making public record and personal document requests is a fairly straightforward process and in most cases costs the requestor a little more than a stamp. Generally, you will first need to acquire the address of the public disclosure office holding the data you are seeking (Internet searches usually returns the address being sought with ease.) Public Records Act (PRA) requests apply to local and state governments and Freedom of Information Act (FOIA) requests only to the federal government. However, California’s legislature is covered separately under the Legislative Open Records Act, CGC § 9070.

These requests can aid one in obtaining a vast array of information, pertaining to for example: your own personal tax documents with your state tax agency or the IRS; declassified files on you, others, or major events; governmental policies or incident reports; legislative regulations, histories, bills, or acts; public employee emails, training or disciplinary histories, titles, positions, pay and benefits, job requirements, work assignments, bonuses or promotions, etc.; governmental budgetary or statistical data; and so on.

To make requests valid they have to be applicable within the act of the law itself (keeping existing disclosure exemptions in mind, e.g., employee home addresses or phone numbers; drafted documents; personal or interoffice memos or notes; arrest or medical records; meetings or discussions; attorney’s work product; etc.), and precisely written to be easily understandable and to the point. Avoid making arguments within your requests. Remember that the underlying purpose for making such requests is to obtain precise data or records from a legally responsible agency of the government, during an exactly stated period of time, for either specified individuals or information. Below is a sample FOIA request, it may be easily modified to suit your own purposes, to use instead for submitting PRA requests, simply alter the below statutory and regulatory citation to, for example: ‘California Public Records Act, CGC § 6250, et seq.’ Also be certain to make any other alterations as necessary, e.g., altering the purpose or intent of the request, removing or modifying the jurat section, etc.


Dear Disclosure Officer:

This is a request for information pursuant to the Freedom of Information Act/Privacy Act, 5 USC § 552 and the regulations thereunder. This is my firm promise to pay reasonable costs and fees for the search, reproduction and certification of documents responsive to this request upon your billing. I am not waiving personal inspection of the documents at this time. I am not requesting a waiver of fees.

If this is not the appropriate office to fulfill this request, I request that you please forward this request to the correct office.

I certify that these documents are for my personal, educational, noncommercial use. I further certify that I have a material interest in the information contained in these documents.

I declare under penalty of perjury of the laws of the United States of America that the foregoing is true and correct; that the requested information pertains solely to me. Executed on [DATE]. I am [FULL NAME] (SSN/TIN: --) and I am requesting the following (numerated 1—#).


Signed: ____________________________________ Date: ___________________


Please send copies of each of the following within 10 business days of receipt of this letter. An additional 10 days will be permitted, if necessary, to obtain any records from another office. Thank you for your prompt attention to this request:

1. . . .

[Weston White]

RESERVED 2

[Weston White]

RESERVED 3

[Weston White]

QUOTATIONS CONTINUED—RESISTING UNLAWFUL ARRESTS

Bad Elk v. United States, 177 U.S. 529, 535, 537-538 (1900): “At common law, if a party resisted arrest by an officer without warrant and who had no right to arrest him, and if in the course of that resistance the officer was killed, the offense of the party resisting arrest would be reduced from what would have been murder if the officer had had the right to arrest, to manslaughter. What would be murder if the officer had the right to arrest might be reduced to manslaughter by the very fact that he had no such right. So an officer at common law was not authorized to make an arrest without a warrant for a mere misdemeanor not committed in his presence. … If the officer had no right to arrest, the other party might resist the illegal attempt to arrest him, using no more force than was absolutely necessary to repel the assault constituting the attempt to arrest.

The occasion of the trouble originated in Gleason’s orders to arrest him and in the announced intention on the part of the policemen, which they endeavored to accomplish, to arrest the plaintiff in error that night and take him to the agency, and all that followed that announcement ought to be viewed in the light of such proclaimed intention. And yet the charge presented the plaintiff in error to the jury as one having no right to make any resistance to an arrest by these officers, although he had been guilty of no offense, and it gave the jury to understand that the officers, in making the attempt, had the right to use all necessary force to overcome any and all opposition that might be made to the arrest, even to the extent of killing the individual whom they desired to take into their custody. Instead of saying that plaintiff in error had the right to use such force as was absolutely necessary to resist an attempted illegal arrest, the jury were informed that the policemen had the right to use all necessary force to arrest him, and that he had no right to resist. He, of course, had no right to unnecessarily injure, much less to kill, his assailant; but where the officer is killed in the course of the disorder which naturally accompanies an attempted arrest that is resisted, the law looks with very different eyes upon the transaction when the officer had the right to make the arrest from what it does if the officer had no such right. What might be murder in the first case might be nothing more than manslaughter in the other, or the facts might show that no offense had been committed.”


Carroll v. United States, 267 U.S. 132, 157 (1925): “In cases where seizure is impossible except without warrant, the seizing officer acts unlawfully and at his peril unless he can show the court probable cause. United States v. Kaplan, 286 Fed. 963, 972.”


United States v. Di Re, 332 U.S. 581, 594-595 (1948): “The Government also makes, and several times repeats, an argument to the effect that the officers could infer probable cause from the fact that Di Re did not protest his arrest, did not at once assert his innocence, and silently accepted the command to go along to the police station. One has an undoubted right to resist an unlawful arrest, and courts will uphold the right of resistance in proper cases. But courts will hardly penalize failure to display a spirit of resistance or to hold futile debates on legal issues in the public highway with an officer of the law. A layman may not find it expedient to hazard resistance on his own judgment of the law at a time when he cannot know what information, correct or incorrect, the officers may be acting upon. It is likely to end in fruitless and unseemly controversy in a public street, if not in an additional charge of resisting an officer. If the officers believed they had probable cause for his arrest on a felony charge, it is not to be supposed that they would have been dissuaded by his profession of innocence.

It is the right of one placed under arrest to submit to custody and to reserve his defenses for the neutral tribunals erected by the law for the purpose of judging his case. An inference of probable cause from a failure to engage in discussion of the merits of the charge with arresting officers is unwarranted. Probable cause cannot be found from submissiveness, and the presumption of innocence is not lost or impaired by neglect to argue with a policeman. It is the officer’s responsibility to know what he is arresting for, and why, and one in the unhappy plight of being taken into custody is not required to test the legality of the arrest before the officer who is making it.

The Government's last resort in support of the arrest is to reason from the fruits of the search to the conclusion that the officer’s knowledge at the time gave them grounds for it. We have had frequent occasion to point out that a search is not to be made legal by what it turns up. In law, it is good or bad when it starts, and does not change character from its success.

We meet in this case, as in many, the appeal to necessity. It is said that, if such arrests and searches cannot be made, law enforcement will be more difficult and uncertain. But the forefathers, after consulting the lessons of history, designed our Constitution to place obstacles in the way of a too permeating police surveillance, which they seemed to think was a greater danger to a free people than the escape of some criminals from punishment. Taking the law as it has been given to us, this arrest and search were beyond the lawful authority of those who executed them. The conviction based on evidence so obtained cannot stand.”


In Coverstone v. Davies, 38 Cal.2d 315 (1952), Justice Carter DISSENTING, along with Justice Schauer CONCURRING: “There is also evidence in the record from which it could be found that the complaint was filed by the police officers against these plaintiffs to avoid the possibility of lawsuits for false arrest and imprisonment. Mr. Mock, father of one of the plaintiffs, testified that Captain Cook, one of the defendants here, called him to his office and remarked that a complaint had not been filed against the boys but that unless they (the police) were released from liability they would have to do so to protect themselves. In Franzen v. Shenk, 192 Cal. 572, 580-583 [221 P. 932], it was said: “... if it appears anywhere during the trial ... that the defendant did not actually believe in the guilt of the person charged with crime, then that fact is an essential element to be considered in the determination of the question of whether or not the defendant had probable cause.

“... the same evidence which tends to prove malice may also, if it indicates a lack of belief on the part of the defendant in the guilt of the plaintiff, tend to prove want of probable cause. ... If, on the other hand, in addition to malice, there was a lack of belief by the defendant in the guilt of the plaintiff, there was want of probable cause, despite the existence of facts which would justify the suspicions of a reasonable man in the guilt of the accused.” Viewing the evidence in the light most favorable to plaintiffs and disregarding conflicts as this court must do in testing the propriety of nonsuits, it appears to me that there was ample evidence from which the jury could have found that these defendants did not themselves believe that they had either probable cause or reasonable grounds for the [38 Cal.2d 327] arrest, imprisonment or prosecution of these plaintiffs. No officer should be permitted to bring unwarranted, unfounded charges against any individual for the purpose of rendering himself immune from liability.

I am of the opinion now, as I was when I wrote my dissent in White v. Towers, supra, that the protection of individual rights should be zealously guarded from unwarranted police action and that the privilege of police immunity should not be so extended that it protects any law enforcement officer who chooses to make an arrest on mere suspicion or conjecture.

The majority decision in this case is another step in support of the police state philosophy which the majority of this court has approved and sanctioned in several recent decisions (see People v. Rochin, 101 Cal.App.2d 140 [225 P.2d 1], reversed by U.S. Supreme Court, January 2, 1952, see Rochin v. California, 342 U.S. 165 [72 S.Ct. 205, 96 L.Ed.]; White v. Towers, 37 Cal.2d 727 [235 P.2d 209]; People v. Gonzales, 20 Cal.2d 165 [124 P.2d 44]), and demonstrates the absurdity of the argument that a person whose rights have been violated by a peace officer may obtain redress against the offending officer. (People v. Gonzales, 20 Cal.2d 165, 169 [124 P.2d 44].)”


State of Washington v. Rousseau, 40 Wn.2d 92 (1952): “[1] It is the law that a person illegally arrested by an officer may resist that arrest, even to the extent of the taking of life if his own life or any great bodily harm is threatened. [CITATIONS OMITTED] The extent to which one illegally arrested may carry his resistance when the acts and conduct of the officer do not threaten his life or any great bodily injury, presents a question on which there is considerable conflict of authority. It is generally recognized, however, that a man may not oppose an arrest which merely threatens his liberty with the same extreme measures permissible if an attempt is made on his life, because the individual wrongfully deprived of his liberty has a supposedly adequate redress by a resort to the laws. State v. Gum, supra. There *95 is authority to the effect that, even in the case of an unlawful arrest, the person arrested would be warranted in using force and inflicting personal injury upon the officer only in self-defense, the necessity or apparent necessity for which must appear. State v. Spaulding, 34 Minn. 361, 25 N.W. 793.

We find ourselves in accord with the supreme court of West Virginia, which, after an extensive survey and summary of the various holdings in that and other states, laid down the rule that the force used in resisting an unlawful arrest must be reasonable and proportioned to the injury attempted upon the party sought to be arrested, and he cannot use or offer to use a deadly weapon if he has no reason to apprehend a greater injury than a mere unlawful arrest. State v. Gum, supra. A similar rule was stated in a recent case, State v. Robinson (1950), 72 A. (2d) (Me.) 260, where it was said:

“An illegal arrest is an assault and battery. The person so attempted to be restrained of his liberty has the same right, and only the same right, to use force in defending himself as he would have in repelling any other assault and battery.”

Had the appellant merely attempted to escape from the officer by flight, there would be no question but that the second arrest was as illegal as the first.

[2] “Every man, however guilty, has a right to shun an illegal arrest by flight. The exercise of this right should not, and would not, subject him to be arrested as a fugitive.” Thomas v. State, 91 Ga. 204, 206, 18 S.E. 305; cited with approval in Porter v. State, 124 Ga. 297, 52 S.E. 283.

It is not the appellant’s flight, but the fact that he pushed the officer into the path of an oncoming automobile, which could have seriously injured or killed the officer as effectively as though the appellant had used a gun, a knife, or other deadly weapon, that raises the question of whether the appellant used unreasonable force in resisting arrest and thereby committed an unjustified assault upon the officer, which would make the second apprehension and arrest of the appellant lawful. . . .

FINLEY, J. (concurring in the result)

. . . Admittedly, this point of view calls for some reconsideration of our decision in State v. Buckley, 145 Wash. 87, 89, 258 Pac. 1030. In that case, the trial court’s suppression of evidence was upheld by this court on the ground that the evidence had been acquired in connection with an alleged illegal arrest, search and seizure. At page 89, we said:

“It is the rule of the English courts, and is the rule of the courts in a majority of the American states, that the admissibility *98 of evidence is not affected by the manner in which, the means by which, or the source from which, it is obtained. It is held that, if the evidence is otherwise pertinent to the issue, it is no valid objection to its admissibility to show that it was unlawfully or illegally obtained. See the note of Mr. Freeman to State v. Turner, [CITATIONS OMITTED]. The highest court of the land, however, has uniformly followed a contrary rule. It has said, in no uncertain language, that it is beneath the dignity of the state, and contrary to public policy, for the state to use for its own profit evidence that has been obtained in violation of law. [CITATIONS OMITTED] We have ourselves followed the Federal rule. [CITATIONS OMITTED]”

While the Federal rule, as announced in Weeks v. United States, supra, and applied in the United States courts, does not permit the admission of evidence or even the use of information acquired in connection with an illegal arrest or search and seizure, and while we have adopted the Federal rule substantially in this state by our decision in State v. Buckley, supra, it is quite apparent that the authorities generally are not in agreement on this problem.

5 Jones Commentaries on Evidence (2d ed.) 3875, § 2079, supports the Weeks case or Federal rule, i.e., the exclusionary doctrine. 8 Wigmore on Evidence (3rd ed.) 31, § 2184, takes the opposite view. Wigmore characterizes the adoption by numerous jurisdictions of the “heretical influence of Weeks v. United States,” as a “contagion of sentimentality in some of the State Courts, inducing them to break loose from long-settled fundamentals.”

There is much to be said for the viewpoint of those authorities favoring the rule of exclusion or nonuse of evidence or information acquired through illegal arrest or search and seizure. This is particularly true in view of the facts, (1) that the exclusionary principle has been predicated upon the Fourth and Fifth Amendments of the United States Constitution, *99 and (2) that those amendments were the outgrowth of widespread English colonial abuses of authority involving compulsory testimony and arrest, search, and seizure, without warrant. The protection of individuals from illegal arrest, search, and seizure ostensibly is the principal purpose, or rationale, of the rule and this is laudable; but realistically, there is much to be said for some reasonable modification or exception of the Weeks case doctrine as established in our state by the Buckley case.”


In Wainwright v. City of New Orleans, 392 U.S. 598, 613-615 (1968), Justice Douglas, DISSENTING under a writ of certiorari dismissed as IMPROVIDENTLY GRANTED: “The circumstances of this case show that the arrest was no more than arrest on suspicion, which, of course, was unconstitutional -- at least prior to Terry v. Ohio -- and robs the search of any color of legality. Henry v. United States, 361 U. S. 98.

Under our authorities (cf. Elk v. United States, 177 U. S. 529, 177 U. S. 534-535, and see United States v. Di Re, 332 U. S. 581, 332 U. S. 594), at least prior to the ill-starred case of Terry v. Ohio, a citizen had the right to offer some resistance to an unconstitutional “seizure” or “search.” Must he now stand quietly and supinely while officers “pat him down” whirl him around, and throw him in the wagon?

The present episode may be an insignificant one, and the hurt to petitioner nominal. But the principle that a citizen can defy an unconstitutional act is deep in our system. Thomas v. Collins, 323 U. S. 516, 323 U. S. 532-537. When, in a recent case (Wright v. Georgia, 373 U. S. 284, 373 U. S. 291-292), it was said that “failure to obey the command of a police officer constitutes a traditional form of breach of the peace,” we made a qualification:

“Obviously, however, one cannot be punished for failing to obey the command of an officer if that command is itself violative of the Constitution.”

We should not let those fences of the law be broken down.

This case points up vividly the dangers which emanate from the Court’s decision in Terry v. Ohio, the so-called “stop-and-frisk” case. If this case is to be decided by the new test of “searches” and “seizures” announced in that case, startling problems are presented. The officers here had no more than an unsubstantiated suspicion that petitioner was a murder suspect, a suspicion based only on a superficial resemblance between petitioner and the wanted man. Thus, they had no right to “seize” petitioner. Is the case dismissed as improvidently granted because the officers had “reasonable suspicion” justifying the seizure, or reasonable grounds to believe that petitioner was armed and dangerous? These questions are not answered by the Court, and leaving them unanswered gives a new impetus to Terry v. Ohio. If this “seizure” was constitutional, then the sleepless professor who walks in the night to find the relaxation for sleep is easy prey to the police, as are thousands of other innocent Americans raised in the sturdy environment where no policeman can lay a hand on the citizen without “probable cause” that a crime has been or is about to be committed. That was the philosophy of Walt Whitman, Vachel Lindsay, and Carl Sandburg, and it was faithfully reflected in our law.

The interest of society in apprehending murderers is obviously strong; yet when the manhunt is on, passions often carry the day. I fear the long and short of it is that an officer’s “seizure” of a person on the street, even though not made upon “probable cause,” means that, if the suspect resists the “seizure,” he may then be taken to the police station for further inquisition. That is a terrifying spectacle -- a person is plucked off the street and whisked to the police station for questioning and identification merely because he resembles the suspected perpetrator of a crime. I fear that, with Terry and with Wainwright, we have forsaken the Western tradition and taken a long step toward the oppressive police practices not only of Communist regimes, but of modern Iran, “democratic” Formosa, and Franco Spain, with which we are now even more closely allied.”


Taylor v. United States, 259 A.2d 835 (1969): “In Thomas v. United States, 134 U.S.App.D.C. 48, 412 F.2d 1095, 1096 (1969), the court said: “If it be assumed that the arresting officer was acting in good faith, the circumstances were such that it could be said that a misdemeanor took place in his ‘presence’ as distinct from ‘within his view.’ The former has customarily been thought to embody a less restricted spatial concept than the latter, and to comprehend awareness through senses other than that of vision alone.” The officer is not limited to his sense of vision alone, i.e., it is not necessary for the officer to have actually seen every fact constituting the commission of the misdemeanor, but he may utilize all his senses. The use by the officer of all his senses of necessity contemplates that the officer will draw upon what is common knowledge under the circumstances. Thus a misdemeanor is committed in the presence of an officer when, with the aid of all his senses and what is common knowledge under the circumstances, the officer has knowledge that such is the case. . . .

To hold otherwise would be to hamper the police in the pursuit of their law enforcement activities. If the police were required to witness every collision on the public highways in order for a misdemeanor to have been committed in their presence, the police would be hindered in the effective administration of the motor vehicle laws, the public interest would not be protected and many law violators would escape prosecution. Congress never contemplated such a result when it enacted the motor vehicle statutes in the District of Columbia.

The search of appellant prior to his entering the patrol wagon was a standard police procedure to check for weapons and was incident to a lawful arrest.”


State of Arizona v. Gunter, 414 P.2d 734, 100 Ariz. 356, 360 (1966): ‘“The usual rule is that a police officer may arrest without warrant one believed by the officer upon reasonable cause to have been guilty of a felony, and that he may only arrest without a warrant one guilty of a misdemeanor if committed in his presence. … The rule is sometimes expressed as follows:

‘In cases of misdemeanor, a peace officer like a private person has at common law no power of arresting without a warrant except when a breach of the peace has been committed in his presence or there is reasonable ground for supposing that a breach of peace is about to be committed or renewed in his presence.’ Halsbury’s Laws of England, vol. 9, part. III, 612.” Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543.’


Miller v. State of Alaska, 462 P.2d 421 (1969): “In Coverstone v. Davies, 38 Cal.2d 315, 239 P.2d 876 (1952), the California Supreme Court construed the applicable statute, which was also similar to AS 12.25.030(1), as allowing an officer to make a warrantless arrest for a misdemeanor where the officer had probable cause to believe the arrestee was committing the offense in his presence. The court held that the arrest is proper when circumstances exist that would cause a reasonable person to believe that a crime had been committed in his presence. The court explained the policy reasons underlying its interpretation:

“When an arrest for a misdemeanor is made upon the complaint of one other than the arresting officer, it is proper to require the securing of a warrant to justify the arrest. * * * However, to make the same requirement, when the officer sees that in all probability a public offense is being committed in his presence, would be to hamper law enforcement officers in their everyday enforcement of the law. Peace officers would be reluctant to make arrests for fear that they would be held liable for having made an honest and reasonable mistake. It is thus manifest that the day to day problems of law enforcement require that peace officers be allowed to act without fear of being held liable upon the facts as they see them, provided such facts would lead a reasonable person to conclude that he was witnessing the commission of a public offense by the person arrested.” 239 P.2d, at 879-880.2

We find these authorities persuasive. We hold that an arrest under AS 12.25.030(1) is lawful where the peace officer has perceived facts which would lead a reasonable man to believe that the arrestee has committed or attempted to commit an offense in his presence. . . . 3

Lastly, we take up the question of whether one can resist a peaceful arrest even though the arrest is unlawful. The weight of authoritative precedent supports a right to repel an unlawful arrest with force. [CITATIONS OMITTED] This was the rule at common law. It was based upon the proposition that everyone should be privileged to use reasonable force to prevent an unlawful invasion of his physical integrity and personal liberty.

But certain imperfections in the functioning of the rule have brought about changes in some jurisdictions. A new principle of right conduct has been espoused. It is argued that if a peace officer is making an illegal arrest but is not using force, the remedy of the citizen should be that of suing the officer for false arrest, not resistance with force. The legality of a peaceful arrest may frequently be a close question. It is a question more properly determined by courts than by the participants in what may be a highly emotional situation. Because officers will normally overcome resistance with necessary force, the danger of escalating violence between the officer and the arrestee is great. What begins as an illegal misdemeanor arrest may culminate in serious bodily harm or death.

The control of man’s destructive and aggressive impulses is one of the great unsolved problems of our society. Our rules of law should discourage the unnecessary use of physical force between man and man. Any rule which promotes rather than inhibits violence should be re-examined. Along with increased sensitivity to the rights of the criminally accused there should be a corresponding awareness of our need to develop rules which facilitate decent and peaceful behavior by all.

The common law rule was developed in a time when self-help was a more necessary remedy to resist intrusions upon one’s freedom.

“[It] was developed largely during a period when most arrests were made by private citizens, when bail for felonies was usually unattainable, and when years might pass before the royal judges arrived for a jail delivery. Further, conditions in English jails were then such that a prisoner had an excellent chance of dying of disease before trial.” Warner, “The Uniform Arrest Act,” 28 Va. L.Rev. 315 (1942).

Section 5 of the Uniform Arrest Act provides: “If a person has reasonable ground to believe he is being arrested by a peace officer, it is his duty to refrain from using force or any weapon in resisting arrest regardless of whether or not there is a legal basis for the arrest.”

That provision, or its equivalent, has been enacted as statutory law in California, Rhode Island, New Hampshire, and Delaware. The Model Penal Code, Section 3.04(2)(a)(i) similarly prohibits the use of force “to resist an arrest which the actor knows is being made by a peace officer, although the arrest is unlawful.” In support of this provision Judge Learned Hand stated:

“The idea that you may resist peaceful arrest * * * because you are in debate about whether it is lawful or not, instead of going to the authorities which can determine, * * * [is] not a blow for liberty but on the contrary, a blow for attempted anarchy.” 1958 Proceedings, American Law Institute, at 254.

At least one state court has adopted the recommended rule as a matter of its common law development. State v. Koonce, 89 N.J.Super. 169, 214 A.2d 428 (1965). The legal literature contains discussions on how much force may be used by either an officer making a lawful arrest or by an unlawfully arrested person in resisting arrest. “Justification for the Use of Force in the Criminal Law,” 13 Stan.L.Rev. 566 (1961); “Criminal Law: Force That May be Used to Resist an Illegal Arrest,” 9 Okl.L.Rev. 60 (1956). At best only elastic standards can be employed, as so much depends upon the exigencies of the situation, the gravity of the offense, and the amount of force and counterforce used or threatened.

To us the question is whether any amount of force should be permitted to be used by one unlawfully but peaceably arrested. We feel that the legality of a peaceful arrest should be determined by courts of law and not through a trial by battle in the streets. It is not too much to ask that one believing himself unlawfully arrested should submit to the officer and thereafter seek his legal remedies in court. Such a rule helps to relieve the threat of physical harm to officers who in good faith but mistakenly perform an arrest, as well as to minimize harm to innocent bystanders. The old common law rule has little utility to recommend it under our conditions of life today. We hold that a private citizen may not use force to resist peaceful arrest by one he knows or has good reason to believe is an authorized peace officer performing his duties, regardless of whether the arrest is illegal in the circumstances of the occasion. 4

Under this standard appellant was given the benefit of instructions to the jury more favorable than that to which he was entitled, as the case was submitted on the theory that one has a right to resist with force an unlawful arrest. We reject the claims of error both for the reason that the arrest was proper and because appellant in any event had no right to resist a peaceable arrest.

3. It is recognized, of course, that the grounds for arresting a person without a warrant for a misdemeanor committed in the presence of an officer are considerably more restricted than those which would constitute probable cause for a felony arrest without a warrant. By our opinion today we do not mean to imply any change in the rules concerning felony arrests.

4. It should be noted that the rule we formulate today has no application when the arrestee apprehends bodily injury, or when an unlawful arrest is attempted by one not known to be a peace officer. Quite different problems are then presented.”

* Miller v. State of Alaska, supra, additionally referenced in-part within: Fields v. State of Indiana, 382 N.E.2d 972 (1978); Burgess v. State of Florida, 313 So.2d 479 (1975).


The People of the State of Illinois v. Carroll, 133 Ill. App.2d 78 (1971): “1 A police officer may arrest a person when he has reasonable grounds to believe that the person has committed a criminal offense. (Ill. Rev. Stat., 1967, ch. 38, par. 107-2.) The test whether the officer had reasonable grounds for his belief is whether a reasonable and prudent man having the knowledge which the officer had would believe the person arrested guilty of the offense. (People v. Asey (1967), 85 Ill.App.2d 210, 229 N.E.2d 368.) We must conclude from Perkins’ own testimony that there was no probable cause for arresting Carroll. Perkins testified [133 Ill. App.2d 80] that Carroll had violated no law, federal, state or municipal. When asked the reason for his arrest, Perkins replied:

“The boy was told if he wouldn’t move back that he would be placed under arrest, at which time he jumped across the ditch, muffled something under his breath again, and I said, that’s it, you are under arrest * * *.”

Carroll was not placed under arrest because he had committed a criminal offense. He was not arrested because he disobeyed the order to move back; in fact, by jumping across the ditch he was complying with this order. He was arrested, according to the arresting officer himself, because he “muffled something under his breath.” Muttering to oneself is not a crime. While Perkins may have been displeased at Carroll's display of hostility, he had no reasonable ground for arresting him.

2, 3 Nonetheless, the lack of probable cause for the arrest does not exonerate Carroll from resisting it. Section 31-1 prohibits a person from knowingly resisting a police officer from performing an authorized act. “Authorized” means “endowed with authority.” (People v. Young (1968), 100 Ill.App.2d 20, 241 N.E.2d 587.) “Resisting” was defined in Landry v. Daley (N.D. Ill. 1968), 280 F.Supp. 938, as “withstanding the force or effect of or the exertion of oneself to counteract or defeat.” In speaking of “resisting” and “obstructing” the court stated:

“These terms are alike in that they imply some physical act or exertion. Given a reasonable and natural construction, these terms * * * proscribe only some physical act which imposes an obstacle which may impede, hinder, interrupt, prevent or delay the performance of the officer’s duties * * *.” See also People v. Raby (1968), 40 Ill.2d 392, 240 N.E.2d 595.

Carroll’s running away was a physical act which impeded and delayed his arrest; it was also a forcible act of resistance. A person may not use force to resist an arrest by one whom he knows to be an officer of the law, even if the arrest is unlawful. Ill. Rev. Stat., 1967, ch. 38, par. 7-7. A police officer may not make an arrest unless he believes that probable cause exists justifying the arrest. Whether there is probable cause is initially a question for the arresting officer. Ultimately, however, it is a question for the courts. If a court finds that there was no probable cause, the accused will be acquitted of the charge and evidence acquired as a result of the arrest will be suppressed. Since a police officer must make the initial determination, and since his office gives him the authority to make an arrest, an accused may not physically resist the arrest. He may inquire as to its reason; he may point out the officer’s mistake; he may protest and argue; but he may not impede the arrest by physical [133 Ill. App.2d 81] action. The public interest in discouraging violence and in insisting on the use of peaceable methods of obtaining release from unlawful custody outweighs the outrage felt by the individual who is subjected to unlawful police conduct. Committee Comments, S.H.A., ch. 38, sec. 7-7; cf. People v. Fort (1968), 91 Ill.App.2d 212, 234 N.E.2d 384. The invalidity of an arrest does not justify physical or forcible resistance under either par. 31-1 or 7-7. But cf. People v. Royer (1968), 101 Ill.App.2d 44, 242 N.E.2d 288.

The related character of sections 31-1 and 7-7 was discussed in Landry v. Daley, supra. The court noted that in spite of the fact that section 31-1 does not proscribe resisting or obstructing an unauthorized act of a police officer, a private citizen who forcibly resists arrest, even though the arrest is itself unlawful, violates section 7-7. Thus, in People v. Young, supra, this court recognized a distinction between the right of a citizen to resist an attempt by a police officer to serve him with a search warrant intended for another individual, and the absence of any right to forcibly resist a police”


Schneckloth v. Bustamonte, 412 U.S. 218, 246-249 (1973): “Much of what has already been said disposes of the argument that the Court’s decision in the Miranda case requires the conclusion that knowledge of a right to refuse is an indispensable element of a valid consent. The considerations that informed the Court’s holding in Miranda are simply inapplicable in the present case. In Miranda, the Court found that the techniques of police questioning and the nature of custodial surroundings produce an inherently coercive situation. The Court concluded that, [u]nless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice.

384 U.S. at 458. And, at another point, the Court noted that, without proper safeguards, the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely.

. . . There is no reason to believe, under circumstances such as are present here, that the response to a policeman’s question is presumptively coerced; and there is, therefore, no reason to reject the traditional test for determining the voluntariness of a person’s response. Miranda, of course, did not reach investigative questioning of a person not in custody, which is most directly analogous to the situation of a consent search, and it assuredly did not indicate that such questioning ought to be deemed inherently coercive. See supra at 232.

It is also argued that the failure to require the Government to establish knowledge as a prerequisite to a valid consent, will relegate the Fourth Amendment to the special province of “the sophisticated, the knowledgeable and the privileged.” We cannot agree. The traditional definition of voluntariness we accept today has always taken into account evidence of minimal schooling, low intelligence, and the lack of any effective warnings to a person of his rights; and the voluntariness of any statement taken under those conditions has been carefully scrutinized to determine whether it was in fact, voluntarily given. [n37]

Our decision today is a narrow one. We hold only that, when the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was in fact, voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact to be determined from all the circumstances, and while the subject’s knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent. [n38] Because the California court followed these principles in affirming the respondent’s conviction, and because the Court of Appeals for the Ninth Circuit, in remanding for an evidentiary hearing, required more, its judgment must be reversed.”


State of Arizona v. Lockner, 20 Ariz. App. 367 (1973): “The defendant relies upon his claim of an unlawful arrest and his right to resist the same, “using such force as may be reasonably necessary, short of killing the arresting officer.” Dugan v. State, 54 Ariz. 247 at 250, 94 P.2d 873 at 874 (1939). The phrase “short of killing the arresting officer” chills this Court, especially in the matter of an arrest by law enforcement officers. While that statement is apparently the law in Arizona, in our opinion it invites violence. We believe the better rule is that under those circumstances the interest of the individual must give way to the interest of the public and the individual may seek his remedy following the arrest. These thoughts are expressed in People v. Carroll, 272 N.E.2d 822 (Ill. App. 1971.)”


State of Idaho v. Richardson, 511 P.2d 263 (1973): “In 1957 the California legislature changed the common law rule in that state by enacting the following statute:

“If a person has knowledge, or by the exercise of reasonable care, should have knowledge, that he is being arrested by a peace officer, it is the duty of such person to refrain from using force or any weapon to resist such arrest.” West’s Ann.Pen.Code, § 834a.”


Commonwealth of Pennsylvania v. Supertzi, 235 Pa. Superior Ct. 95 (1975): “It is true that the right to resist an unlawful arrest, John Bad Elk v. United States, 177 U.S. 529 (1900), had not been abrogated in Pennsylvania by statute at the time of appellee’s and Tenney’s arrest. [3] However, in Commonwealth v. Beam, 227 Pa. Superior Ct. 293, 324 A.2d 549 (1974) (also decided under 18 P.S. § 4314), this court acknowledged the erosion of that concept with approval. The increasing complexity of the law of probable cause renders the legality of an arrest a highly technical area of the law. See e.g., [CITATIONS OMITTED] *99. The technicalities involved in determining the validity of a warrantless arrest, coupled with the availability of civil remedies for false arrest, have led many to conclude that there is no right forcibly to resist an arrest by a known officer of the law, whether or not the arrest is subsequently determined to be unlawful. [4] A rationale often used as support for this position is that the participants in such an altercation seldom have the time or the emotional stability necessary to make a legal judgment of the rights involved. There is a strong likelihood that a decision made under those circumstances will be wrong, thus increasing the likelihood that useless violence will occur. Any rule which creates a high risk of useless violence can only be upheld by the strongest of justifications.

In this case, the issue of whether one can forcibly resist an unlawful arrest is not before us. The issue here is whether one can aid another in forcibly resisting an arrest subsequently determined to be unlawful. [5] Under such circumstances, the person coming to the aid of the arrestee is likely to have even less facts at his disposal for determining whether the arrest is lawful, than the one who is being arrested. This case provides a perfect illustration of that fact, for the appellee had no knowledge from which to determine the legality of Tenney’s arrest. To hold that the appellee’s conduct could be justified by a subsequent determination that the arrest of Tenney was unlawful, would mean that the would-be rescuer could *100 join the fray without any idea of whether the arrestee’s conduct is legal or not.

We hold that there was and is no right forcibly to aid another in resisting an unlawful arrest.

[3] As of June 6, 1973, the use of force to resist an unlawful arrest by a known police officer is unjustifiable. Act of December 6, 1972, P.L. 1482, No. 334, § 1 (18 Pa.C.S. § 505(b)(1)(i)).

[4] In addition to the authorities cited in Commonwealth v. Beam, [CITATIONS OMITTED].

[5] The lower court held that the arrest of Tenney was unlawful because the arresting officer was without a warrant, and because there was no probable cause to arrest. Our disposition of this case renders it unnecessary for us to decide that issue at this time.”


Burgess v. State of Florida, 313 So.2d 479 (1975): “We support the reasoning and the conclusion so well articulated by the Supreme Court of Alaska in its opinion in Miller v. State, Alaska 1969, 462 P.2d 421, 426-27, wherein that court receded from the common law rule which allows forceful resistance to an unlawful arrest, stating: [See quotation, supra.] . . .

In State v. Richardson, 1973, 95 Idaho 446, 511 P.2d 263, the court adopted the rule elaborated by the Supreme Court of Alaska. Another recent case expressing dissatisfaction with the common law rule is State v. Lockner, 1973, 20 Ariz.App. 367, 513 P.2d 374, 378.

The quoted extract from the opinion in Miller, supra, is consonant with the tenor of this court’s opinion in Daniel v. State, Fla.App.2d 1961, 132 So.2d 312, requiring law enforcement officers to make known their official capacity before making an arrest, and with the philosophy of this court’s opinion in State v. Fulkerson, Fla. App.2d 1974, 300 So.2d 275, that one imprisoned under some color of law is not entitled to resort to self-help but rather may apply for his release through regular channels of the law.”


Fields v. State of Indiana, 382 N.E.2d 972 (1978): ‘In Heichelbech, supra, and in Williams, supra, both this court and our Supreme Court recognized that at common law a person was permitted to resist an unlawful arrest with reasonable force. However, both the court in Heichelbach, supra, and the court in Williams, supra, quickly pointed out that recent cases have held that a private citizen may not use force in resisting a peaceful arrest by a person which he knows or has good reason to know was a police officer performing his duties, regardless of whether the arrest was legal or illegal.

We are of the opinion that the common law rule is outmoded in our modern society. A citizen, today, can seek his remedy for a policeman’s unwarranted and illegal intrusion into the citizen’s private affairs by bringing a civil action in the courts against the police officer and the governmental unit which the officer represents. The common law right of forceful resistance to an unlawful arrest tends to promote violence and increases the chances of someone getting injured or killed. In Miller v. State (1969), Alaska, 462 P.2d 421, 426-427, the Supreme Court of Alaska stated the following: [See quotation, supra.] . . .

In the case at bar we hold that although Wilson Fields’ initial arrest was unlawful, he was not entitled to forcefully resist Officer Fields’ attempt to apprehend him. We note that this appeal does not address issues that arise when an arrestee apprehends that the arresting officer is using excessive force and that unless the arrestee defends himself, he is likely to suffer great bodily harm or death. Nor does this appeal deal with issues that are presented when an unlawful arrest is attempted by one not known to be a law enforcement officer. Our holding is limited to the fact situation presented in the case at bar.’

[HVACTech]

color me stupid... but something is missing here.

[ClydeCoulter]

color me stupid... but something is missing here.

Please give him time. He's just getting the thread started, it appears. :)

[jkr]

W0w!

BUMP

[HVACTech]

Please give him time. He's just getting the thread started, it appears. :)

thats cool. I was just wondering... mebbe it was me.

sounds interesting. and like something people in the cities could use.....
I try to stay out of those places myself..

[Weston White]

lol Alright current content has been posted now, along with a PDF (first edition); keeping in mind this is its first iteration and should be considered only for informational purposes and not taken as legal advise, etc., etc., etc.