Invalid "Terry frisk"

[Joshuaace2]

C'mon Carl, When the judge first tries to lead the officer to testimony that would lead to justification for the "frisk". And then offers and argues the inevitable discovery exception for the state.

That's not leeway Carl, that's flat out malfeasance.

I think you misunderstood the question to Ohiogal.

Granted that would be the officers motive for the FST's.

The question was if I was already arrested, what would be my motive? And, if indeed I was arrested prior to the FST's, and not read miranda, wouldn't the FST's be inadmissable under the Fifth. Your right to an attorney does begin at the point you are arrested. Unless of course you waive that right, or the state does not intend to use that information against you.

 

[Zigner]

I only just got it.

You aren't here looking for advice - you're here looking for somebody to agree with you.

 

[Joshuaace2]

Hey Carl, a couple more questions.

1) Does a patrol officer receive training in the justificaion for, and the scope of a "Terry Frisk"?

2) Should every patrol officer then reasonably know the requirements of a "Terry Frisk"?

Thanks again, as always, feedback appreciated.

Roger

 

[Joshuaace2]

Zig, I don't see where you offered any advice, only facetious remarks. This thread has remained a completely civil discussion between people with differing opinions, can we PLEASE keep it that way.

Thanks,

Roger

 

[Zigner]

Zig, I don't see where you offered any advice, only facetious remarks. This thread has remained a completely civil discussion between people with differing opinions, can we PLEASE keep it that way.

Thanks,

Roger

Again - you are not here for advice. You are here to find cheerleaders.

 

[CdwJava]

C'mon Carl, When the judge first tries to lead the officer to testimony that would lead to justification for the "frisk". And then offers and argues the inevitable discovery exception for the state.

That's not leeway Carl, that's flat out malfeasance.

It might be ... but, I have no knowledge as to how much leeway a judge in your state is granted. The answer to any question that begins, "Can a judge ..." usually ends with an answer of, "Yes." You may not like the answer, but until or unless an appellate court rules otherwise, his decision stands.

The question was if I was already arrested, what would be my motive? And, if indeed I was arrested prior to the FST's, and not read miranda, wouldn't the FST's be inadmissable under the Fifth. Your right to an attorney does begin at the point you are arrested. Unless of course you waive that right, or the state does not intend to use that information against you.

But, nothing you wrote indicates that you were not arrested so the issue is moot.

1) Does a patrol officer receive training in the justificaion for, and the scope of a "Terry Frisk"?

In a manner of speaking, sure. In the academy out here search and seizure laws are drilled into you in the academy and should also be reinforced in field training. Whether it is in your state, I can't say. But, I would be very surprised if it were not.

This is why I believe that if the officer were relying solely on his pat down to justify a seizure of the marijuana, it should be thrown out. But, as you know, the court - on its own volition - decided to find inevitable discovery was present.

2) Should every patrol officer then reasonably know the requirements of a "Terry Frisk"?

Sure. But, that does nothing to help your issue.

You will probably only prevail if you can somehow can successfully appeal the DUI and get the probable cause for that arrest overturned.

- Carl

 

[Joshuaace2]

Carl,

Can an officer, knowing the justification, and the limited scope of, a "Terry Frisk", conduct that frisk without justification, and exceeding the scope of that frisk. Can he do that in "Good Faith"?

 

[CdwJava]

Carl,

Can an officer, knowing the justification, and the limited scope of, a "Terry Frisk", conduct that frisk without justification, and exceeding the scope of that frisk. Can he do that in "Good Faith"?

That depends on the circumstances. Even if done in good faith, the evidence should be excluded.

But, even if the officer admittedly screwed up the frisk, you still need an appellate court to suppress the arrest for the DUI.

You are focusing on the frisk and that is not what is tripping you up in this case, it is the inevitable discovery based upon the DUI arrest.

- Carl

 

[tranquility]

The guideline on if a frisk is allowed is objective. It's not what the officer believed, but what a reasonable officer would believe.

 

[Joshuaace2]

But if the search was done in "bad faith" it does stand to impeach his credibility about the FST's, doesn't it?

Carl, if the officer testified "miranda" was given at the police station, after the trip to the hospital for blood and urine. That will be a big problem for them, wont it?

You have been so helpfull, I don't know how to express my gratitude.

As always, Thank you, feedback appreciated.

Roger

 

[CdwJava]

But if the search was done in "bad faith" it does stand to impeach his credibility about the FST's, doesn't it?

If he lied, sure. If he was just incredibly mistaken, then it might go to question his ability to correctly evaluate the FST=s.

But, THAT SHIP HAS SAILED! The time to challenge the FSTs and the officer's ability to conduct them was at trial. You will NOT be able to do that on appeal. If you were prohibited from challenging the FSTs for some reason, and you can successfully challenge the judge's refusal, then you might be able to get a new trial. but, you made no mention whatsoever of the judge rendering such a decision so thi sissue is moot. That means, it is irrelevant to your situation.

Carl, if the officer testified "miranda" was given at the police station, after the trip to the hospital for blood and urine. That will be a big problem for them, wont it?

Why? Some 90 percent of arrests never require Miranda rights. Unless the state wanted to introduce evidence of any statements made AFTER your arrest, Miranda will likely not apply.

Again, this is moot as it is something that should have been raised at trial.

You have been so helpfull, I don't know how to express my gratitude.

You're welcome. But, I suspect it is not going to do you much good as you are at the appellate stage and not at the trial stage, so any of these ideas you have batted around are merely exercises in academia.


- Carl

 

[Joshuaace2]

So they can draw blood without informing you of your right to an attorney?

There are 14 issues adressed in the post trial motion for a new trial. All of them are again raised on appeal.

Atty says more often than not the appelate court sends the case back to the circuit level with instructions- provided they find errors at trial.

Who knows, maybe this exercise in acedemia will come in handy.

You rock.

Roger

 

[CdwJava]

So they can draw blood without informing you of your right to an attorney?

Unless you are in one of those couple of states that allow you the opportunity to contact an attorney prior to a test, no, they do not have to.

Again, the issue should have been raised at trial.

There are 14 issues adressed in the post trial motion for a new trial. All of them are again raised on appeal.

But you do not get to try any of these issues at the appeal, only try to show that there was some reversible error to allow you a new trial.

Atty says more often than not the appelate court sends the case back to the circuit level with instructions- provided they find errors at trial.

There's your big "if" ... IF they find errors. Experience has told me that it is rare. but, it is still possible.


- Carl

 

[Joshuaace2]

By issues I meant trial court errors, Thanks.

 

[CdwJava]

By issues I meant trial court errors, Thanks.

Those "errors" are the opinion of your attorney. Many appeals outline a dozen or more such errors, but few get returned to a lower court for a new trial.

- Carl