Probable cause question

Probable cause question

This is a discussion on Probable cause question within the Law Enforcement, Military & Homeland Security Discussion forums, part of the Related Topics category; It's a bit of an odd question, figured it might get more LEO view in here. Move it if necessary. Starting with the 4A The ...

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Thread: Probable cause question

  1. #1
    VIP Member Array chiefjason's Avatar
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    Probable cause question

    It's a bit of an odd question, figured it might get more LEO view in here. Move it if necessary.

    Starting with the 4A

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.


    Can you think of a situation where a legal activity is used as PC for a search and seizure of private property? Call me crazy, but I have always been of the assumption that if you are not breaking the law you should be left alone.

    Being intentionally vague here, but I'm asking because there is an odd section in a proposed law for NC. It will make an otherwise legal activity PC for search and seizure. This does not sit well with me, and I'm not really happy with the responses I am getting from my Rep. This seems to be open for abuses against law abiding citizens. Before I make myself sound like an idiot, I want to see if this seems as odd to you as it does to me.

    So I'm looking for general answers to begin with. Can you think of a situation where this would be appropriate? Then I'll throw the proposed law in later. I think my question will get lost in other issues if I post the law first.
    I prefer to live dangerously free than safely caged!

    "Our houses are protected by the good Lord and a gun. And you might meet 'em both if you show up here not welcome son." Josh Thompson "Way Out Here"


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    VIP Member Array NC Bullseye's Avatar
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    Tag for the discussion, I think I know which one you're scratching your head on, I did too. Got a letter ready to go tomorrow after a fresh review.

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    Member Array Deuce130's Avatar
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    Perhaps the purchase of innocuous materials that, when taken together, add up to suspicious purchases? Like materials for bomb making? Or cleaning up a crime scene? Or making drugs? I would imagine there a many more examples of perfectly legal actions that could add up to PC when taken together. Hard to get more specific without knowing what you're talking about.

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    Well, lets look at first things first. The term you are looking for is reasonable suspicion, not probable cause. I know I harp on that here, but I do because there is a key difference. Look it up, read the definitions and uses to save me a lot of typing here.
    Second, yes, adding up several legal actions by a "suspect" can create reasonable suspicion or even probable cause. Here is an example;

    A man is dropped off around the corner from the bank. He walks directly toward the bank. He is wearing all black, gloves and has a knit hat on. (Its July) In his hands he has a crowbar and a duffel bag. He also has a pistol in a holster in plain view strapped to his belt.

    Now, none of those things are illegal. But add them up, and you have reasonable suspicion. Reasonable enough to be stopped, questioned, and have property "seized" for the duration of the investigation.

    Probable cause would come into play in the next step of our mock senario. Probable cause would need to be developed in order for an arrest, or to obtain a search warrant for a deeper investigation.
    "Just blame Sixto"

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    Senior Member Array Frogbones's Avatar
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    Quote Originally Posted by SIXTO View Post
    Probable cause would come into play in the next step of our mock senario. Probable cause would need to be developed in order for an arrest, or to obtain a search warrant for a deeper investigation.
    Inwhich during the investiagtion, a letter or note with the content of damanding money, or inciting a hold up?

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    Ex Member Array Kerby's Avatar
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    Quote Originally Posted by chiefjason View Post
    It's a bit of an odd question, figured it might get more LEO view in here. Move it if necessary.

    Starting with the 4A

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.


    Can you think of a situation where a legal activity is used as PC for a search and seizure of private property? Call me crazy, but I have always been of the assumption that if you are not breaking the law you should be left alone.

    Being intentionally vague here, but I'm asking because there is an odd section in a proposed law for NC. It will make an otherwise legal activity PC for search and seizure. This does not sit well with me, and I'm not really happy with the responses I am getting from my Rep. This seems to be open for abuses against law abiding citizens. Before I make myself sound like an idiot, I want to see if this seems as odd to you as it does to me.

    So I'm looking for general answers to begin with. Can you think of a situation where this would be appropriate? Then I'll throw the proposed law in later. I think my question will get lost in other issues if I post the law first.
    Interesting question; I have been uneasy about the 4A since the last administration doing away with it all together and calling it the patriot act; the word patriot is good so most folks let it slide and concentrated on the fake 2a attack instead.

  7. #7
    VIP Member Array chiefjason's Avatar
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    Quote Originally Posted by SIXTO View Post
    Well, lets look at first things first. The term you are looking for is reasonable suspicion, not probable cause. I know I harp on that here, but I do because there is a key difference. Look it up, read the definitions and uses to save me a lot of typing here.
    Second, yes, adding up several legal actions by a "suspect" can create reasonable suspicion or even probable cause. Here is an example;
    I figured the conversation might go to this point, and being vague does not help. Problem is, that is not the direction the legislation is going. It specifies that the otherwise legal action is probable cause to search. Since I have a couple of responses and some interest, lets see if we can dig into this without derailing it into other areas. This is a bit "Patriot act"ish.


    The title of the bill is " AN ACT TO CREATE THE CRIMINAL OFFENSE OF TERRORISM." Sound great huh? Who in their right mind would be against making terrorism illegal and punishing it more severely. That was the thought I had when I started reading this. The entire bill is here if you are interested.

    H149 [Filed]

    A quick necessary definition too.

    (4) Closed community compound. – A community with limited public access reputed to be bound together by a common purpose or ideology. As used in this subdivision, the term 'limited public access' means access only by private roads or paths or by public roads but where the community as a practical matter limits public access.
    (4) Community. – A group of residences or dwelling structures located on common land or contiguous parcels.


    And now for the part that concerns me. Keep in mind that most of this bill seems to be OK. But the part that concerns me is the weakest link in this chain IMO and is the most likely to be misused. It's also the only thing listed that is legal on it's face.

    § 14‑288.28. Probable cause for searching closed community compound.
    The following factors taken singly or together may constitute probable cause for search and seizure of the evidence of criminal activity related to unlawful paramilitary activity, acts of terrorism, a continuing criminal enterprise, authorizing the search of each structure within a closed community compound:
    (1) Evidence of two or more criminal acts on separate occasions by two or more persons who are residents of or visitors to a closed community compound when each criminal act involves one or more of the following: weapons, drugs, theft, carjacking, vandalism, robbery, kidnapping, acts of terrorism (including aiding and abetting), paramilitary activity, fraud (including welfare fraud) under any State or federal law, other crimes of violence, other crimes involving theft or dishonesty.
    (2) The presence of persons who are not lawfully present in the United States.
    (3) Neighbor reports of frequent gunfire or explosions from a closed community compound.
    (4) Reports from other law enforcement agencies that fugitives are being harbored in a closed community compound.
    (5) Having a history of harboring known fugitives, whether or not charged or convicted of an offense.
    (6) Any other factors which may justify a search and seizure.

    Now, do you trust your neighbors, in a general sense, or local LEO's to make that judgement call? Shooting on private property is legal in most non incorporated areas. Where it is illegal, yeah I can see it being PC that something is up. But where it is legal? Who gets to define frequent? Could the definition of Closed Community Compound get more vague? How many of you shoot somewhere where you might fit this definition?
    I prefer to live dangerously free than safely caged!

    "Our houses are protected by the good Lord and a gun. And you might meet 'em both if you show up here not welcome son." Josh Thompson "Way Out Here"

  8. #8
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    I see your point, and do not disagree. However, that (#3) is just one element in in establishing probable cause in order to obtain a search warrant. You still would have to obtain a search warrant. An judge would still need to agree with the totality of circumstances and issue the warrant. Nothing changes there from what it is now.

    Let say there is a private community that has a skeet and trap range. Everyone around would probably know that there is a skeet and trap range there. If not, properly conducted intellgience would reveal that fact rather quickly. No warrant should be issued in that case. Now lets say that same trap range has neighbors complaining because shot is falling onto their cars. The owners of our private community will not allow zoning in to inspect the safety of the range, or LE in to investigate if it was an accident or something with criminal intent. Should a warrant be issued? I would say yes to that one.

    Here is a more black and white example; Lets say your next door neighbor (husband and wife) has a fully enclosed, large back yard. Due to physical barriers, foilage and topography, no one can see into their back yard. You are outside in your backyard playing with the kids. All of a sudden five quick shots ring out from your neighbors yard. You call police.
    Police arrive, your neighbor refuses to allow them to look in the backyard. He also refuses to allow them to talk with his wife. Should a warrant be issued?
    "Just blame Sixto"

  9. #9
    VIP Member Array chiefjason's Avatar
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    Quote Originally Posted by SIXTO View Post
    I see your point, and do not disagree. However, that (#3) is just one element in in establishing probable cause in order to obtain a search warrant. You still would have to obtain a search warrant. An judge would still need to agree with the totality of circumstances and issue the warrant. Nothing changes there from what it is now.
    Yes, you would still have to deal with a judge. My concern is establishing an otherwise legal activity as PC, then writing the law so that meeting one criteria does establish PC. And one of those criteria is perfectly legal. Could the judge deny the warrant, yeah I guess so. This just seems to lesson the information need to establish PC. And I don't see this law being weakened one iota without #3.

    This is kind of along the lines of our last discussion. Sometimes in working to prevent something we take too big of a chance with our freedoms. This one feels like it crosses that line for me.

    Thanks for the thoughts. I do appreciate it.
    I prefer to live dangerously free than safely caged!

    "Our houses are protected by the good Lord and a gun. And you might meet 'em both if you show up here not welcome son." Josh Thompson "Way Out Here"

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    I guess the point I'm trying to make is that legal activity can already be PC. This really changes nothing. Its feel good legislation, so the voting public thinks that the elected officials are actually doing something.
    "Just blame Sixto"

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    VIP Member Array NC Bullseye's Avatar
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    Quote Originally Posted by SIXTO View Post
    I see your point, and do not disagree. However, that (#3) is just one element in in establishing probable cause in order to obtain a search warrant. You still would have to obtain a search warrant. An judge would still need to agree with the totality of circumstances and issue the warrant. Nothing changes there from what it is now.
    Sorry but I have to disagree with this. Once there is a statute that law enforcement can quote to a judge that states that "Neighbor reports of frequent gunfire or explosions from a closed community compound" justifies a search warrant, the judge will be more inclined to do so then we have given up part of our rights to give them this "feel good" legislation.

    If it truly changes nothing then they aren't losing anything by NOT having it in the bill.

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    Quote Originally Posted by NC Bullseye View Post
    Sorry but I have to disagree with this. Once there is a statute that law enforcement can quote to a judge that states that "Neighbor reports of frequent gunfire or explosions from a closed community compound" justifies a search warrant, the judge will be more inclined to do so then we have given up part of our rights to give them this "feel good" legislation.

    If it truly changes nothing then they aren't losing anything by NOT having it in the bill.
    But, as I illustrated, the sound of gunfire can in fact be used in constructing PC for a search warrant right now. Nothing changes. And there is something that would be lost without #3.... that good do'er feeling.
    "Just blame Sixto"

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    (1) Evidence of two or more criminal acts on separate occasions by two or more persons who are residents of or visitors to a closed community compound when each criminal act involves one or more of the following: weapons, drugs, theft, carjacking, vandalism, robbery, kidnapping, acts of terrorism (including aiding and abetting), paramilitary activity, fraud (including welfare fraud) under any State or federal law, other crimes of violence, other crimes involving theft or dishonesty.
    I dislike #1 just as much. I'm a moonie and I live in a moonie village. My Neighbors (very unenlightened) kids get caught shoplifting. Then a week later they steal a car. According to this statute this would qualify as PC to search my house too.


    (6) Any other factors which may justify a search and seizure.
    And what about this? This is so wide open it reminds me of the old military catch all, "conduct unbecoming".
    I haven’t heard any of the journalists who volunteered to be waterboarded asking to have their fingernails wrenched out with pliers, or electrodes attached to their genitals.

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    VIP Member Array chiefjason's Avatar
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    Quote Originally Posted by atctimmy View Post
    I dislike #1 just as much. I'm a moonie and I live in a moonie village. My Neighbors (very unenlightened) kids get caught shoplifting. Then a week later they steal a car. According to this statute this would qualify as PC to search my house too.

    And what about this? This is so wide open it reminds me of the old military catch all, "conduct unbecoming".
    Yeah, oddly enough the vast majority of things this bill want's to punish are already illegal. They just want to punish them more. I don't completely disagree with that idea. But some of the junk in here is a bit unnerving.

    Sixto, I think "feel good legislation" pretty much sums it up. At least we are getting some headway on some pro gun laws I guess.
    I prefer to live dangerously free than safely caged!

    "Our houses are protected by the good Lord and a gun. And you might meet 'em both if you show up here not welcome son." Josh Thompson "Way Out Here"

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    VIP Member Array mlr1m's Avatar
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    Quote Originally Posted by SIXTO View Post
    I guess the point I'm trying to make is that legal activity can already be PC. This really changes nothing. Its feel good legislation, so the voting public thinks that the elected officials are actually doing something.
    I agree. It is totally unnecessary and can only cause confusion.

    Michael

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