First, I am not a lawyer but do work for a large law firm and am very familiar with the law. One of my indulgences is following the decisions of the Federal Courts, the Courts of Appeal, and the Supreme Court, and unfortunately have watched the civil rights and constitutional guarantees we once enjoyed be slowly taken away through 5-4 decisions of the Supremes, especially under CJ Roberts.

Entrapment is almost a "thing of the past" defense. Even when LE tells a suspect that "your buddy has confessed" when they don't even have the "buddy" in custody, it's still acceptable under the law, so being told "NO" when you ask if someone is LE doesn't cut it in court. And when you are told (or read) that "compensation is for my time only and anything else is a matter of personal choice between 2 adults of legal age," it sounds good and some small-town uninformed LE may buy it, but in my city (one of the big 5), it's not going to fly. No disrespect intended to the ladies who post that phrase, and to some it may be more of an emotional or mental comfort, but I would not hang my defense on it if caught or trapped.

The lastest ruling by the Supremes (5-4) is also of particular interest because it has a slight connection to the hobby ... a man was arrested in his home on an "out of date" and "revoked" warrant because of a computer glitch in the arresting city (the warrant was cancelled but they never took it out of the system). When the police arrested him, they found drugs and a gun. Once the warrant was discovered to be faulty, his attorney tried to get the evidence excluded ... the "poison fruit from the poison tree." It went all the way through the system to the Supreme Court, who just recently ruled that unless the search was(paraphrased) intentionally flawed, malicious or done in a knowingly illegal manner, the evidence was admissible because the search was done with good inentions and probable cause. The defendant remains in jail to serve his sentence. So, if you are caught in a sting, get busted with a lady who the police "suspect," or anything along that line and can not prove malicious intent or willful disregard on the part of LE, you're beat.

The only way to insure the maximum protection for yourself and your companion is to do your research, stick with well-reviewed ladies (and Hobbyists), check references (or job info) and watch where you meet. The boards are full of horror stories (NCNS, rip-offs, deposits sent and no shows, etc), and no one needs LE added to that.

Have safe and enjoyable hobbying everyone.
(not a lawyer but someone who wants you to have some facts so you can make an informed decision).

Could you cite the cases you referred to since most of those issues have been decided many years ago.  

LE telling someone their "Buddy just confessed" has nothing to do with entrapment. Entrapment is a defense wherein the burden of proof is on the defendant to prove beyond a reasonable doubt that the police coerced a person who was not predisposed to violate the law into committing a crime.

Since when have undercover LE been required to admit they are the police when asked?  

As far as the outdated warrant is concerned, that is not what the fruit of the poisoned tree means.  The courts have held many years ago that if LE conducts a search pursuant to a warrant that they believed was valid at the time of the search, and the search was conducted in good faith the search is valid.  If LE enters a residence under exigent circumstances, or other circumstances where they legally gain entry any evidence observed in plain sight can be seized without a search warrant.  If the police conduct a warrantless search absent exigent circumstances or absent another legal reason for entering the residence then any evidence seized cannot be used in court.  That is what the fruit of the poison tree means.

Probable cause is required to obtain a warrant.  Probable cause is not required to serve a warrant.

I am not quite sure what you meant when you said “So, if you are caught in a sting, get busted with a lady who the police "suspect," or anything along that line and can not prove malicious intent or willful disregard on the part of LE, you're beat."  Are you saying just being with a female who LE suspects is a prostitute can get you arrested?  What malicious intent are you talking about?  Do you mean malicious intent or willful disregard on the part of LE?  Please explain what malicious intent or willful disregard on the part of LE means.

I am looking forward to your response.

The link to "Herring" and the Supreme Court ruling is below ... the faulty warrant.

I did not say entrapment had anything to do with "your buddy confessed" ... it's an example of LE misrepresenting the facts. Of course, predisposition counters coercion. The issue is the constant question in numerous board threads of "Are you LE" and the fact that many feel a "NO" covers them. I only tried to point out the error of that thinking and reinforce that LE is not always honest.

Not sure what other citations you speak of ... I only specifically referenced the SC's latest.

If a warrant is issued incorrectly, or proven to be invalid, evidence obtained "Had" been more liberally considered the fruit of the poisonous tree and I can't tell you when it became more strict, although I know evidentiary hearings are held on individual cases ... I understand the "in plain sight" rule, and perhaps I did not indicate that the gun and drugs were found as a result of a search, not in plain sight. Sorry ... you'll see the reference when you read the SC opinion. My understanding is that the warrant was cancelled and should have been taken out of the system ... No probable cause, no reason to search, no "in sight" evidence ... but that's the opinion shared with me by members of our Criminal Department when we debate the SC decisions, and as I said, I am not a lawyer. This latest SC Opinion removes all but the most outrageous LE actions with regard to evidence obtained improperly from being improper.

Logic tells one that if a sting operation is being conducted and you are observed with someone suspected of an illegal activity, going into a place or leaving a place thought to be involved in a criminal activity, you could be detained, questioned, possibly booked ... or whatever LE decided. It's their call, and while "remaining silent" is a smart thing, it may not prevent your wife, SO, a family member or your lawyer being called down to bail you out. To me, that's being beat!! The issue to most is not the long term effect of the trumped up charges, but the immediate reaction to those who find you've been detained or arrested in a vice matter.

Willful disregard and Malicious intent were meant to relate to LE. I thought that was pretty clear.

Are you a lawyer? I posted an opinion, referenced the latest SC ruling (which is at the link) and pointed out some safety suggestions that my 62 years on this earth have taught me. I am not a lawyer, clearly stated that, and did not, to the best of my knowledge, render any professional legal advice ... I offered some areas to think about and to look at, which is the purpose of a discussion board.

I hope this answers your questions.

In HERRING v. UNITED STATES, the guy was arrested, and subjected to a search incident to his arrest, although no valid warrant was outstanding against him,and the police lacked probable cause to believe he was engaged in
criminal activity. Although all conceded that the Fourth Amendment had been violated, the Court held the evidence found need not be  surpressed because the defective warrant was the result of  isolated negligence by the police distinct from the search, rather than intentional conduct, systemic error or reckless disregard of constitutional requirements.


       The Supreme Court had previously determined that when the warrant was the error of non-police employees, the exclusionary rule did not apply. In this case, the error was an error by the police and that was the novel issue decided.

      This case had nothing to do with entrapment, however, and entrapment remains a viable defense where the defendant can prove inducement and the government cannot prove predisposition.

Agreed! Thanks for your analogy and understanding of HERRING. Also interesting is the fact that the invalid warrant was not even in his jurisdiction ... it was in another one!!

Predisposition, however, may be a valid LE arguement if there is an "envelope" found, they match the handwriting that says "gift" or the young lady's name, and they can make an arguement that the 2 did not know each other prior to the meeting. That's what makes the law so interesting ... different opinions. Thanks for your insight. I'm just trying to point out some areas to think about to make the hobby safer.

Herring didn't change the direction of the court. If you look at the case law cited it merely affirmed the direction of the court in cases of similar circumstances. There was nothing remarkable in the decision as far as eroding the 4th Amendment.  The decision was a good example of Stare Decicis.

In your example:   Logic tells one that if a sting operation is being conducted and you are observed with someone suspected of an illegal activity, going into a place or leaving a place thought to be involved in a criminal activity, you could be detained, questioned, possibly booked ... or whatever LE decided. It's their call, and while "remaining silent" is a smart thing, it may not prevent your wife, SO, a family member or your lawyer being called down to bail you out. To me, that's being beat!! The issue to most is not the long term effect of the trumped up charges, but the immediate reaction to those who find you've been detained or arrested in a vice matter.

You statement is very general in nature and doesn’t describe what suspected criminal activity you are referring to.  However, in regards to a prostitution sting, the alleged crime is a misdemeanor which means the police cannot make an arrest unless they witness the crime.  Merely observing money change hands and a subsequent sex act is not considered witnessing the crime because the police cannot testify as to what was in the minds of the participants.  That is why it is imperative that one of the parties in the transaction be the police.  Essentially you could be observed by the police entering a motel room where a prostitute is operating.  On your way out, if the police asked you what you were doing, you could tell them you just paid a prostitute for sex and they could not arrest you.  What they could do is request your identification and forward that information along with an application for a complaint to the concerned prosecutor who could file charges against you in court. However the chances of getting a filing is very remote.

One problem with the criminal justice system is that the trier of fact is the jury in a jury trials which means that if the jury believes the alleged violation contained the corpus delicti of the alleged crime then they can find you guilty.  But that is a subject for another thread.

Re: “Willful disregard and Malicious intent were meant to relate to LE. I thought that was pretty clear.” Could you provide an example wherein “Willful disregard and Malicious intent apply to the police? I can’t seem to see where that would relate to the subject at hand.

Not being a lawyer, I'm not in a position to debate the fine points of law. I will say that the main difference in HERRING is that in most cases, evidence has not been excluded or surpressed if the error was done by non-police personnel. Here, the error WAS done by police personnel.

I don't know where you live, but here in my city (one of the big 5), prostitution is often connected (or alleged to be connected) with organized crime, so busts are made, pictures are in the paper, etc. Again, my intent was NOT to proclaim new law or characterize any particular activity (although on this forum, I think we all know what the "subject" matter is about), but to pass on some first-hand insight into helping those in the hobby stay and play safe. The point I tried to make is that even if it's a misdeamenor, the potential damage to an individuals' reputation, the embarrasssment, and the damage to the family could be severe ... so why put yourself at risk ... be careful, do your research, stick with established individuals, etc. That's the base message. Yes, it may be a bit general if you're trying to give a dissertation to the ABA, but I'm trying to reach those of us here.

I'm not sure what you want with regards to "an example" of police willful misconduct or malicious intent. Please don't tell us that you've never heard of police fabricating evidence, or falsely filing for a search warrant, or the numerous cases over the years where police and prosecutors have been found to have falsified documents, leading to numerous appeals by those convicted with tainted evidence. Do you need docket numbers, case histories, citations?? Can I give you State or Federal cases, or does it matter? I don't know what you're trying to accomplish, so if you'd be kind enough to PM me with what you'd like, I'll ask someone at the firm to look it up for me and give you the info, but I don't see where adding additional citations to this thread serves a purpose ... this is NOT a legal document, legal service or legal advice ... I am trying to offer some tips to keep all of us a bit safer. This is a discussion forum ... to share opinions and to offer insight to each other. But I will try to satisfy your curiosity if I know exactly what you'd like.

disregard and malicious intent is this.

        Herring addresses two independent groups of police officers –the record keeper and the arrest officer. If (1) the record keeper negligently makes a bookkeeping error such that a recalled arrest warrant remains outstanding; and (2) the arresting officer without knowing of the error makes an arrest and then searches the premises where illegal stuff is found, the illegal stuff is not suppressed under Herring. The reason is that the arresting officer acted objectively reasonably, or in good faith as older decisions use to say, and the balancing test used to decide exclusion does not tilt in favor of meaningful deterrence here.

      If, however, "the police have been shown to be reckless in maintaining a warrant system, or to have knowingly made false entries to lay the groundwork for future false arrests" but used the arrest warrant anyway to arrest and enter the premises, then the evidence found would be suppressed bc the officer acted in willful disregard of the defendant’s Fourth Amendment rights, or did so maliciously to hurt him.

      You are right that a long line of cases had rejected exclusion where the arresting officer acted in good faith but in those cases the error had been made by a non-police official.

(GDB readers please note!)

One eye opener for me is Balboa's remark that even if a client admits to illegal activity, i.e. sex for money; LE is not allowed to take him into custody.

I'm sure I have read once or twice of clients hauled in when they unthinkingly blurted this out to LE thinking that if they are honest, LE will be nice to them.

(It seems to happen all the time on COPS, doesn't it?)

I may not be a lawyer, but I'm getting closer all the time from reading this board.

(still not a lawyer)

        In fact, I'm still thinking about that one. I think his point was that the guy could not be arrested on the spot bc certainly the police could go get an arrest warrant after hearing such a confession.

        As to whether the guy could be arrested on the spot where he blurts out "I did it" but the police did not witness the misdemeanor, that might turn on how state law defines "in the presence."

        In Texas (courtesy of Bruce) "An offense is deemed to have occurred within the presence or view of an officer when any of his senses afford him an awareness of its occurrence.  However, the information afforded to the officer by his senses must give the officer reason to believe that a particular suspect committed the offense]."


         So at least there LE does not actually have to see it. If they "hear it" they can arrest. Whether this would cover an after the fact "I did it," however, is an interesting question.

       My first reaction would be to agree with Balboa that LE could not arrest in that situation. Certainly defense atty would make this argument.

Officer, arrest me. I just paid for sex with that woman.

I can’t arrest you- I did not see it.

But I admit that I did it.

But I didn’t see it.

You arrested me last week when I just paid to talk to that other woman.

That’s because the other woman was an undercover cop, so we saw it.

But that time I didn’t do it.

But we saw it.

So you’re saying you can arrest me even if I didn’t do it because you saw it, but you can’t arrest me when I did do it if you didn’t see it?

That’s what the law says.
….

If the law says that, then Mr. Bumble was right -the law is an ass.


Apologizes to Oliver Twist.

...there are whole courses in law school about the Miranda Decision and what can and can't be used against you in court.  We will not get a definitive answer here.  BUT, I do know that anything you blurt out without being asked to an officer BEFORE he has a chance to Mirandize you IS probably admissable.  However, as a rule, once an officer has detained you (you are not free to leave) he must read you your rights and if he does not, nothing you say is admissable.  

Having said all that, MISDEMEANOR CASES DO NOT HANG ON SUCH NUANCES!!! These things almost NEVER go to an actual trial where the issue could even be brought up!  Yes, if you have the funds to hire an attorney and threaten to no-kidding plead Not Guilty and demand your day in court (and in the spotlight), the attorney might well hammer the Prosecutor into a very favorable plea or a dismissal rather than take the whole thing to court.  

And if you are EVER read your rights, there is ONLY ONE THING TO DO, STFU and ask for a lawyer. Like Mr Fischer said, no one explains their way out of handcuffs.
MVR

If you don't understand something, or you don't agree with a statement, why don't you research the subject to verify the validity of the statement or refute the validity of the statement? Making a joke does nothing to further clarify the discussion. There is a humor board for jokes and there is certainly no shortage of clowns among the various forums.  I participate on other boards including occasionally posting a joke on the humor board, but I try to use this board for its intended purpose of discussing legal issues.  I posted a new thread further explaining misdemeanor arrests. I hope my message was clear and unambiguous. However, I welcome any questions any reader might have about the content of the thread.  I will attempt to respond to any question if I have sufficient knowledge to answer the question.

You seem to have a degree of knowledge of the law and have enthusiastically participated in many discussions in this forum.  Although I don’t agree with all of your points and authorities and interpretations of the law, I feel most of your statements are correct, informative and helpful.  I thought you were a serious contributor; please don't prove me wrong.

thank you kindly Von,
wow, very interesting & good info. I have been so confused. thank you ...in my case..there were no Miranda & I was held about an hour ,they strip searched, took poloroids(not mentioned in the LE rport)the picturs disappreared.....searched my purse,,went through every credit card.picture of family..etc. & then went out & searched through my car..it was awful....& the cop askede me a personal question about my Boobs!!!! I thought it was so inappropriate.... I cannot believe the hell I have had & am still going through..hanging on to your "good news"  & trying to be patient...

proposal that you might try reading the post again if you thought it was a “joke.”

      Mr. Swift believes the post was not a joke but was a satire in the style of Monty Python as to the absurd consequence of a strict interpretation of the misdemeanor arrest rule. Satire is a technique that is sometimes more effective than simply stating the obvious in dry legal terms.

        Mr. Swift believes you can be forgiven for not connecting Mr. Bumble with the dialogue and missing the obvious play on a particular scene from Oliver Twist. He is less forgiving about your suggestion that the post would be more appropriate on the other board since that board is for Erotic Humor. The post would be unintelligible to anyone who was not following the discussion about the requirement that LE can arrest for a misdemeanor only if committed in the presence of the officer.

        Mr. Swift further suggests that, if the moderator feels satire is inappropriate on this Board, he will delete.

        As to your opinion that such posts are not helpful and that time would be better spent researching the point, Mr. Swift disagrees with you. He seriously doubts there is any case law addressing this academic question, since anyone who confessed to a misdemeanor would be likely to plead and there would no reason to challenge the arrest.

     And he does think LE could not arrest on the spot in this situation given the rule restricting warrantless misdemeanor arrests to those committed in the presence of the officer.
   
  Frankly, noting that the author made over 90 substantive posts on the Legal Corner board over the last six months, Mr. Swift finds your complaint about one satirical humorous post being objectionable to be ridiculous.  His modest proposal is that, if you don’t like satire, your remedy is to click elsewhere.

I don't know of Jonathan Swift and I know very little about Money Python. I will assume this response is not tongue in cheek.

When jokes deal in law, some measure of information might be obtained therein, if the jokester is skilled.  Jonathan Swift and Monty Python are above reproach in this regard.

When the law deals in jokes, however, head for the hills.

is concerned. But no need to apologize- you expressed your opinion and I replied. My point was only that the dialogue is satire.

You probably do know of Jonathan Swift as the author of Gulliver's Travels. His most famous essay is A Modest Proposal which is a satire on how to solve- well, we'll save that for later.

Oliver Twist, of course, is the famous novel by Charles Dickens that satirized the laws and social conditions of 17th century London.

I probably should have included Joseph Heller in the mix, since the absurdity of the misdemeanor arrest rule in this context is right out of Catch 22.

This type of humor admittedly is an acquired taste. But I think Mr. Fisher at least got it.

I have to respectfully call attention to a fine point reguarding a misdemeanor violation "not witnessed by the officer".  This is all well & good.

LE pulls you over for say, speeding.  The officer witnessed the violation but did not get a radar reading nor clocked you long enough to get a definative reading...  The officer can write a ticket based on "estimated speed" but that is more risky, as the officer's ability & training to estimate speed will be put on trial.

So the officer asks "Just how fast were you going?"
Let's say you reply "80".  You might have been driving 90, but LE might be challenged to prove it.  The officer can cite you for driving "80" because you admitted the violation.   The officer will likely write this in the comment blank!  You'd be surprised how much can be written in that space & can be read at your hearing!

I am reminded of a case of a high rate of speed violation.  The out of state car was stopped within sight of the state line.  The driver told the trooper that he was wasting his time writing the ticket because he had no intention of returning to pay it!  The driver was arrested, his car was towed.  WHY?
The driver gave the trooper probable cause to believe he would not appear in court.  

I believe has been said very well:  STFU.
gtTs
   

This is why the first thing out of an officer's mouth after you are pulled over and after he asks for license and registration is:

"Do you know how fast you were going?"

or,

"Do you know why you were pulled over?"

Even if you say "no", you could conceivably be cited for improper operation.  (You're supposed to know what your speed is."

If you want to say anything, respond with a respectful question like:  "What do you say officer?"

Maybe he just wanted to give you a safe driving award.

(NOT)

(still not a lawyer)

... an officer writes citations (summonses) at his discretion.  If he wants to, for almost anything he can write a citation for, he can cuff, arrest, tow your car, and book you into jail.  I have personally witnessed police officer's arrest an book a person into a city jail for JAYWALKING. This was a known scumbag that the officer was givng a hint to leave town. Point is that the cop could and did do it.  

Otherwise, the most common crime to motivate him to do this is 'Contempt of Cop' so forget the sharp one-liners about Duncan Donuts and the witty attempts to show him how smart you are and how dumb he is.  Like it or not, they have the hammer and can use it as long as their supervisor doesn't care that he spent the time to do it.  

MVR

PS: Do not EVEN think that you can beat a traffic citation if you get it out-of-state and aren't planning on going back there ever/soon. No, they won't come looking for you but you will be in for a rude surprise at your local DMV the next time you attempt to renew your driver's license.

Our bus was pulled over in every state we crossed into for no stated reasons, and some states, it happened multiple times.  Fortunately the driver knew the laws well enough to prevent searches and other potential troubles.

I personally witnessed an officer so frustrated that the driver would not allow her to search his "motor home" (as it was properly registered) that she handcuffed him, put him in a car, then stuck a screwdriver into his engine gasket.  Then she tried to claim the vehicle was a hazard and would be impounded so that she could search it.
: O

I traveled with that driver for about a year.  Not only could he fix his own rig, he knew the book front and back, and he was polite and cool headed in situations with authorities that others would have folded or rolled over...

Oh yeah, some of our passengers wered hauled away in cuffs during these stops for minor unpaid traffic violations and FTA's.  You're right, these things don't simply "go away" when you do lol!

S.

-- Modified on 2/10/2009 11:38:10 PM

On their 1970 tour stop in New Orleans, someone told LE that the Dead had marijuana in their hotel room (they needed to be told that?). As the story goes, LE obtained either a search warrant or an arrest warrantt (I've heard both stories) based on this info, searched the premises, found drugs and busted almost the entire band for possession. The case was later dismissed on “a technicality.”

     Robert Hunter captured the scene in the lyrics to "Truckin":

Sittin and starin out of the hotel window.
Got a tip they re gonna kick the door in again
Id like to get some sleep before I travel,
But if you got a warrant, I guess you’re gonna come in.

Busted, down on bourbon street, set up, like a bowlin pin…..


On a completely irrelevant note, Truckin is the only dead song to be played in a Woody Allen film.




-- Modified on 2/11/2009 9:16:31 AM

Since the subject came up....  NEVER consent to a search of your vehicle.  You see cops 'working' someone on COPS all the time and cajoling consent for a 'quick search' of the vehicle out of them.  OK, they stop you for speeding, no license plate light, whatever; next thing you know they want to search your car.  Bullshit.  Be polite but be firm.  "Officer, I have nothing in my car that is illegal, however, I do NOT consent to you searching it, that violates several of my rights(do NOT go quoting the Constitution, you will get it wrong) and you have no reason to search my vehicle.  If you DO have probably cause to search my vehicle, you don't need my consent anyway. I suggest you either let me go or obtain a warrant.  By the way, what time is it?  I believe you may only detain me for one hour, isn't that true?"

If you are dumb enough to have dope in the car (sorry, I have no use for dopers/tweakers/meth-ers/etc) they may get a dog who will alert on your car and give them probable cause to search.  Have a nice day and enjoy Booking and Holding.  

If there is nothing in your car and they DO get a warrant, they are gonna feel really stupid having to let you go.  On the other hand, if you truly are clean, letting them search may be the quickest way out.  Your choice.  

MVR

good advice Von
In my case they did not ask for permission to search. they(1 of the cops) dumped my purse out, took keys & went out searched car, came back in and threw a "video-membership card" at me & said "what the hell is this?"

few days prior, I gave my friends brother a ride home..apparently he accidently dropped a video-rental membership card  & it had fallen in between a seat...I had no idea it was there or even missing.. & don't know what they were implying?

1 of the other cops picked at  every credit card & picture in my wallet..& said "she is definatly a prostitute" as they looked at a photograph of me & an older gentleman at a musuem ......
that older gentleman is my Dad...........
... I am still have trauma from this experience...it seems there is seroius problems with the conduct OCSD

I was stopped in NM a few year ago, according to the K-9 officer for doing 70mph in a 65 mph zone. I had out of state license; officer had his dog do a walk around and officer said the dog got a hit. I didn't have any contraband and thought this was BS so when he asked if he could search my vehicle, I said NO. He then called back up and he and the back-up jacked around for at least 1/2 hour while I waited in my car. When they figured I wasn't going to let them search my car they told me to follow them to the police station where I waited for them to get a search warrant. That took about an hour & a half. When they produced the warrant with the judge's signature, I opened the trunk. They didn't find anything; the officer said why didn't I open the trunk. Said the stop was BS and I wasn't going to let this slide.
  When I got home I called the FBI to see if I could file complaint, they said that my story wasn't worthy, was told to call the NM state police. The NM folks said the same thing the FBI said. I don't know if my protest made a difference but as a person, I felt better that I didn't rollover.

that is flat out scary, What evil loser LE
all that trouble they cost you,,
That took a lot of guts on your part, you never know how they(LE) will react. as they corrupt. it is so unfair. thank you for sahring your story

It could have ended worse, if the cops decided they really wanted to find something they could have planted a bag.