Homeowner had 'a right to resist'

[txinvestigator]

CHL/LEO

Thank you for your response to my rather harsh post of you possibly turning a blind eye. No "flame" was meant or intended, but the wording of your post,

Trust me - this (illegal searches/arrests) happens every day here in Texas.

hit a hot spot with me. To me, calling it illegal means the law was broken. I appologize for typing my response with "flame"on my fingers. I really do try to take a civilized tongue with responses, and will try harder in the future.

I get tired of hearing fight it in court. You shouldn't have to fight unjust charges by an incompetent leo. If these people can't do their jobs legally, then they need to find other jobs. Having to pay a lawyer, miss work, and possibly losing your job, without any recourse, just aint right no matter how you cut it. Hence my comment "taking it like sheep".
You might beat the rap, but you can't beat the ride, just really grates on my nerves. Either you have legal evidence of wrongdoig, or you don't. Trained leo know the difference.

I joined this forum for the same reasons as you. I learn alot from postings such as yours, Txi's, and others, and really do appreciate the varried inputs.

Dan

Let me just say that constitutional law is not black and white. Circumstances vary too much for there to be an easy to follow set of guidlines for LEOs. That is why we have courts; trial, appelate and the Supreme Court.

A LEO probably gets 40 hours, if that, on search and seizure in the academy. Texas requires 40 hours of in-service (continuing education) every two years, but the current cycle has nothing on search and seizure.

Police make arrests based on Probable Cause. Non-vehicular searches require a warrant or one of the exceptions to the search warrant requirement. Vehicle searches are a little more "lax" for a better choice of words. The officer has to make an immediate decision; the courts take YEARS of studying law books, case law, etc, to decide if the search was a lawful (actually what is meant is constitutional search) search.

I just spoke to a LEO that had a DWI case kicked because his PC for the traffic stop was the violator failed to dim his high beams. (don't anyone get excited, this was not Texas, lol) For whatever reason, the judge decided that was not sufficient PC. However, failing to dim IS a ticketable offense in that state.

If an officer makes a GOOD FAITH search that a court later rules unconstitutional, that officer should face no penalty. And it will ONLY get to court of contraband or other evidence is discovered as a result of the search.

The difficulty in determining whether a search is lawful of not is one of the reasons that lawmakers made it illegal to resist a search. Just because YOU (meant generically) don't think a search is lawful does not mean that the search is not lawful, nor does it mean that the officer does not have reason to believe it is lawful. Officers can draw upon their training and experience (that most non-LEOs do not have) when establishing a just cause for a search.

I hope this sheds some additional light on the issue.

[Liberty]

Let me just say that constitutional law is not black and white. Circumstances vary too much for there to be an easy to follow set of guidlines for LEOs. That is why we have courts; trial, appelate and the Supreme Court.

The courts don't offer fairness justice.
The reason that people are sensitive about a "drag them to jail and let the courts figure it out" is that the defendant is a loser even after he eventually wins. While the prosecutor and the cops pay no real penalties. The courts don't offer real justice if you don't have thousands of dollars... and if you do have the money .. There is no reimbursement.

Note to moderators .. "nuff said, no mas on this from me."

[txinvestigator]

Let me just say that constitutional law is not black and white. Circumstances vary too much for there to be an easy to follow set of guidlines for LEOs. That is why we have courts; trial, appelate and the Supreme Court.

The courts don't offer fairness justice.
The reason that people are sensitive about a "drag them to jail and let the courts figure it out" is that the defendant is a loser even after he eventually wins. While the prosecutor and the cops pay no real penalties. The courts don't offer real justice if you don't have thousands of dollars... and if you do have the money .. There is no reimbursement.

I agree with this completely. That is why it is incumbent upon the officer to act in good faith, and not with that mentality.

If an officer intentionally violates search and seizure rules, or makes arrests without legitimate PC, there are avenues for punitive actions against the officer.

However, if punitive action could be taken against an officer anytime a case was not successfully prosecuted, or when evidence was excluded, then there would be ZERO enforcement.

I know a LOT of LEOs, from local cops to Deputies, Constables, Hospital Police, College and School District Police, State Troopers, Regulatory Agencies, and many Federal Agencies. They all are conscientious, dedicated, educated in constitutional issues and careful to cautiously apply law. Everyone of them has had evidence excluded, but none because of the mentality you describe.

I also belong to a forum that has a restricted area for LEO's and former LEOs. There are members from all over. We have MANY discussions regarding search and seizure. Case law is developing daily, and these guys are working as hard as they can to stay on top of it.

The overwhelming majority of these LEOs are honest, hard working and respect YOU. There are bad apples, but that is in EVERY profession; Doctors, Dentists, Attorneys, Pilots, Bus Drivers, Engineers, etc......

All of that said, this thread is about a man who attacked 2 LEOs where were arresting his wife. I was not there, nor was anyone else here. But I tell you this; if you walk in your garage and see 2 uniformed police officers arresting your resisting spouse, you should not interfere. You can only make matters worse for both of you.

[Fourman]

I just spoke to a LEO that had a DWI case kicked because his PC for the traffic stop was the violator failed to dim his high beams. (don't anyone get excited, this was not Texas, lol) For whatever reason, the judge decided that was not sufficient PC. However, failing to dim IS a ticketable offense in that state.

Man, I wish the high beam on is a ticketable offense here, many times on the back roads people just will not turn them off.

Brian

[txinvestigator]

I just spoke to a LEO that had a DWI case kicked because his PC for the traffic stop was the violator failed to dim his high beams. (don't anyone get excited, this was not Texas, lol) For whatever reason, the judge decided that was not sufficient PC. However, failing to dim IS a ticketable offense in that state.

Man, I wish the high beam on is a ticketable offense here, many times on the back roads people just will not turn them off.

Brian

It is ticketable in Texas.

[Fourman]

TXI,

Thanks for the info. That is good to hear that at least I can have that warm feeling in my gut that they are breaking the law. :)

Brian

[phddan]

Come on Txi,

But I tell you this; if you walk in your garage and see 2 uniformed police officers arresting your resisting spouse, you should not interfere. You can only make matters worse for both of you.

Obviously you are stating what most times should be commen sense. But there are times when action is apropriate.
With my wifes physical state, I would definately be interfering to illegal force, no question about it.

Dan

[txinvestigator]

Come on Txi,

But I tell you this; if you walk in your garage and see 2 uniformed police officers arresting your resisting spouse, you should not interfere. You can only make matters worse for both of you.

Obviously you are stating what most times should be commen sense. But there are times when action is apropriate.
With my wifes physical state, I would definately be interfering to illegal force, no question about it.

Dan

And what is the likelihood your bride would resist a police officer?

[phddan]

And what is the likelihood your bride would resist a police officer?

What is the likelihool of police officers using illegal force?

Dan

[CHL/LEO]

What is the likelihood of police officers using illegal force?

A very small percentage - very, very low.

While there may not be hardly any ramifications for most improper searches, seizures, or arrests - there are both criminal and civil penalties for illegal or improper use of force. Not only will the LEO get fired, he or she will also be subject to personal civil penalties and criminal prosecution.

This is beat into LEOs heads from day one at most agencies so it is top of mind awareness to them. Still, there are LEOs that violate the force continuum and you end up reading about them in the paper or see it on the news. However they are few and far between and let's hope it stays that way.

[phddan]

[/quote]A very small percentage - very, very low.

While there may not be hardly any ramifications for most improper searches, seizures, or arrests - there are both criminal and civil penalties for illegal or improper use of force. Not only will the LEO get fired, he or she will also be subject to personal civil penalties and criminal prosecution.

This is beat into LEOs heads from day one at most agencies so it is top of mind awareness to them. Still, there are LEOs that violate the force continuum and you end up reading about them in the paper or see it on the news. However they are few and far between and let's hope it stays that way.

I totally agree.

But to say,

you should not interfere. You can only make matters worse for both of you.

suggests that you have no rights and no legal backing against illegal force. Way to many police impersenators, terribly executed no-knocks, and heavy handed tactics to make a blanket statement that you should not interfere. There apparently is legal backing to do so. Granted, you better have good witnesses and video, because your word against theirs is not going to cut it in most cases.

Look, I'm not suggesting to get physical at all. But there are extreme cases where it is justified. I think we both want to get home safe at the end of the day.

Dan

ETA- have no idea how I messed up the quote functions.

[pbandjelly]

they're backwards.
start with the [ quote ] and end with [ /quote ]

be sure they are a 1:1 ratio, and you're good to go.

and if you want a fancy

I'm dead, foo'!!!!

do this [ quote="name of poster" ] whatever lame bull they said [ /quote ]

just take out the spaces, m'kay

now back to the Cops beatin' up ol' ladies!!!!!

jk, btw.

[carlson1]

and if you want a fancy

I'm dead, foo'!!!!

oops

[LedJedi]

this question has always come to mind with stuff like this ...

Do police NEED a search warrant? I was always under the impression that if they saw/heard/smelled/etc. what appeared to be evidence of a crime they could enter and search without a warrant.

(I realize this thread isnt' really about illegal search, was just curious)

so there is NO defense against resisting arrest or search unless the officer has already used excessive force (which is dubious to determine in the first place)?

[seamusTX]

Do police NEED a search warrant? I was always under the impression that if they saw/heard/smelled/etc. what appeared to be evidence of a crime they could enter and search without a warrant.

so there is NO defense against resisting arrest or search unless the officer has already used excessive force ...

The police never need a warrant.

Legally, they can enter if they see evidence of a crime from a public place (through the window from the sidewalk, for example) or other signs of someone in distress (screaming, etc.).

The legality comes into play when evidence is introduced in a trial. If the search was not legal, the evidence cannot be used.

Resisting arrest is rarely justified and almost guaranteed to get you (1) hurt and (2) charged with a felony. The only time I could see myself resisting arrest is if the officer had threatened to kill me. (I'm talking here about corrupt officers, who I am unlikely to encounter.)

- Jim