http://www.youtube.com/watch?v=6ywtHzyIl2U
If you are NOT interested in learning more about your rights, then don't read the below email or watch the youtube video.
Feel free to forward . . .
You'll notice that as soon as the cop got past the "do you speak English" part, HE MADE A REQUEST.
QUESTION: DID THE PARTY TO WHOM THE REQUEST WAS MADE "HAVE TO" PRODUCE WHAT WAS REQUESTED?
"...any compulsory discovery by extorting the party's oath, or compelling the production of his private books and papers, to convict him of crime, or to forfeit his property, is contrary to the principles of a free government. It is abhorrent to the instincts of an Englishman; it is abhorrent to the instincts of an American. It may suit the purposes of despotic power, but it cannot abide the pure atmosphere of political liberty and personal freedom,...
And we are further of opinion that a compulsory production of the private books and papers of the owner of goods sought to be forfeited in such a suit is compelling him to be a witness against himself, within the meaning of the fifth amendment to the Constitution, and is the equivalent of a search and seizure -- and an unreasonable search and seizure -- within the meaning of the fourth amendment,"
Boyd v. United States, 116 U.S. 616 (1886)
THAT COP DIDN'T DEMAND ANYTHING!!! HE ASKED!!! THAT DUDE WAIVED HIS RIGHT NOT TO PROVIDE EVIDENCE THAT MAY BE USED AGAINST HIM. HE DID IT VOLUNTARILY BECAUSE THE COP "ASKED", ASKING IMPLIES CONSENT AND THAT DUDE "CONSENTED" TO PRODUCE WHAT COULD BE USED AGAINST HIM. WHY DIDN'T THE GUY "ASK" THE COP SOMETHING LIKE: "OFFICER, IF I PRODUCE WHAT YOU ASKED FOR, CAN YOU USE IT AGAINST ME?". Is that UNREASONABLE? Is that OBSTRUCTING AN OFFICER? Does the dude have the RIGHT to inquire? Then he might have ASKED; Officer am I required to CONSENT to waive my right not to produce what can be used against me?
A REQUEST and DEMAND ARE NOT SYNONYMOUS. COPS ARE PROHIBITED FROM PULLING SOMEONE OVER TO SEE IF THEY HAVE A LICENSE. Hello out there - Had the cop demanded the DRIVER LICENSE the dude could have established in court that the cop broke the law by pulling him over to see if he had a license. But the cop didn't demand anything, the COP PRESUMED the dude had one and ASKED to have it produced. THE DUDE BEHIND THE WHEEL DIDN'T REBUT THE PRESUMPTION IN ANY MANNER (Evidence Code sec. 600).
If the cop OBSERVED A PUBLIC OFFENSE (PC 836), then why didn't he ANNOUNCE that the guy behind the wheel was UNDER ARREST and TELL HIM WHAT SECTION OF WHAT CODE THE COP BELIEVED WAS VIOLATED THEN READ THE DUDE HIS RIGHTS? IF IT WAS A "CLEAN COLLAR" THEN WHY DID THE COP "ASK" THE DUDE ANYTHING? WHY DIDN'T HE JUST ORDER THE GUY OUT OF THE CAR AND TELL HIM HE WAS UNDER ARREST AND THEN SEARCH HIM AND THE CAR FOR CONTRABAND? BECAUSE THE COP WAS FISHING! AND HE BROKE THE LAW TO DO IT! THAT COP COMMITTED AT LEAST ONE CRIME WHEN THAT DUDE CAME TO A HALT MAKING THE "STOP" TAINTED!
Further, who will argue that dude WAS NOT FREE TO LEAVE at will without that cop retaliating?
If he wasn't FREE TO LEAVE AT WILL WITHOUT FEAR OF RETALIATION then it WAS NOT A "CONSENSUAL ENCOUNTER". If it wasn't a "CONSENSUAL ENCOUNTER" then it was a COMPELLED RESTRAINT. There's 3 WORDS typically used to identify a COMPELLED RESTRAINT - DETENTION, SEIZURE, ARREST.
The United States Supreme Court has identified three categories of police contact with persons. The first is referred to as a "consensual encounter" in which there is no restraint on the person's liberty. There need be no objective justification for such an encounter. The second type, called "detention," involves a seizure of the individual for a limited duration and for limited purposes. A constitutionally acceptable detention can occur "if there is an articulable suspicion that a person has committed or is about to commit a crime." The third type involves seizures in the nature of an arrest, which may occur only if the police have probable cause to arrest the person for a crime. (Florida v. Royer, supra, 460 U.S. 491; Wilson v. Superior Court, supra, 34 Cal.3d 777.)
PEOPLE v. BAILEY, 176 Cal.App.3d 402
[No. H000583. Court of Appeals of California, Sixth Appellate District. December 17,1985.]
That cop WAS NOT in possession of or responding to a WARRANT for the dude's arrest or the search and seizure of his property. Under the circumstances, IF the cop made an ARREST, then it's PRESUMED FALSE lacking a warrant and the burden shifts to the PEOPLE to PROVE PROBABLE CAUSE for the arrest.
Defendant makes a prima facie case of unlawful arrest when he establishes that arrest was made without a warrant, and burden rests on prosecution to show proper justification.
People v. Holguin (1956) 145 Cal.App.2d. 520 [302 P.2d. 635]
QUESTION: DID THE COP MAKE AN ARREST? YOU BET YOUR ASS HE DID! BECAUSE THAT'S HOW THE LEGISLATURE IDENTIFIED THE "POLICE CONTACT", IN THE VEHICLE CODE ITSELF!
Nevertheless the violator is, during the period immediately preceding his execution of the promise to appear, under arrest. (People v. Weitzer (1969) 269 Cal.App.2d 274, 294 [75 Cal.Rptr. 318]; People v. Valdez (1966) 239 Cal.App.2d 459, 462 [48 Cal.Rptr. 840].) fn. 2 Some courts have been reluctant to use the term "arrest" to describe the status of the traffic violator on the public street waiting for the officer to write out the citation (see People v. Nunn (1968) 264 Cal.App.2d 919, 923, fn. 4 [70 Cal.Rptr. 869]; People v. Wohlleben (1968) 261 Cal.App.2d 461, 463 [67 Cal.Rptr. 826]; People v. Nieto (1966) 247 Cal.App.2d 364, 369 [55 Cal.Rptr. 546]. The Vehicle Code however, refers to the person awaiting citation as "the arrested person." fn. 3 Viewing the situation functionally, the violator is being detained against his will by a police officer, for the purpose of obtaining his appearance in connection with a forthcoming prosecution. The violator is not free to depart until he has satisfactorily identified himself and has signed the written promise to appear.
People v. Hubbard, 9 Cal.App.3d 827
[Crim. No. 17355. Court of Appeals of California, Second Appellate District, Division Four. July 22, 1970.]
CALIFORNIA VEHICLE CODE
DIVISION 17. OFFENSES AND PROSECUTION
CHAPTER 2. PROCEDURE ON ARRESTS
Article 1. Arrests .......................................... 40300 - 40313
40300. The provisions of this chapter shall govern all peace officers in making arrests for violations of this code without a warrant for offenses committed in their presence,
40500. (a) Whenever a person is arrested for any violation of this code not declared to be a felony, or for a violation of an ordinance of a city or county relating to traffic offenses and he is not immediately taken before a magistrate, as provided in this chapter, the arresting officer shall prepare in triplicate a written notice to appear in court or before a person authorized to receive a deposit of bail, containing the name and address of the person, the license number of his or her vehicle, if any, the name and address, when available, of the registered owner or lessee of the vehicle, the offense charged and the time and place when and where he shall appear. If the arrestee does not have a driver's license or other satisfactory evidence of identity in his or her possession, the officer may require the arrestee to place a right thumbprint, or a left thumbprint or fingerprint if the person has a missing or disfigured right thumb, on the notice to appear. This thumbprint or fingerprint shall not be used to create a data base.
40504. (a) The officer shall deliver one copy of the notice to appear to the arrested person and the arrested person in order to secure release must give his or her written promise to appear in court... Thereupon, the arresting officer shall forthwith release the person arrested from custody.
Ok, it's an ARREST.
QUESTION: DID THE COP WITNESS A CRIME? HELL NO!
“...infractions are not crimes... (People v. Battle (1975) 50 Cal.App.3d Supp. 1 [123 Cal.Rptr. 636].) fn. 1 [1b] Proceedings on infractions are not attended by the same constitutional safeguards as those attending felony or misdemeanor prosecutions. The limitation on an accused's right to jury trial of infractions has withstood constitutional attack upon the rationale the Legislature did not intend to classify infractions as crimes. (See People v. Oppenheimer (1974) 42 Cal.App.3d Supp. 4 [116 Cal.Rptr. 795] and People v. Battle, supra, 50 Cal.App.3d Supp. 1.)
People v. Sava (1987) 190 Cal.App.3d 935, 235 Cal.Rptr. 694
[No. D005040. Court of Appeals of California, Fourth Appellate District, Division One. March 27, 1987.]
COURT NEWS
NOVEMBER―DECEMBER 1999
Historical highlights from the last hundred years of the California judiciary 1965
“Judicial Council endorses legislation that classifies minor traffic violations as noncriminal infractions subject to trial without jury”
http://www.courtinfo.ca.gov/courtnews/novdec99-3.pdf
2001 Annual Report
Judicial Council of California
p. 6
MILESTONES
1967 Judicial Council sponsored legislation that reclassifies minor traffic violations as noncriminal infractions
http://www.courtinfo.ca.gov/reference/documents/ar2001-1.pdf
QUESTION: ARE POLICE AUTHORIZED TO APPLY THE STATE'S POLICE POWER TO NONcriminal BEHAVIOR?
Are Vehicle Code sections 4000(a), 5200, 5201, speeding, a low tire, a burned out tail light, California stop, PENAL PROVISIONS? Someone read 4000(a) and 5200 or 5201 and tell me where the Legislature AUTHORIZED a police officer to make a WARRANTLESS ARREST for an alleged violation of those sections? WHERE'S THE ENABLING LANGUAGE? IT MUST EXIST BECAUSE THE COPS ARE DOING IT RIGHT NOW!!! So where did the Legislature provide the AUTHORIZATION for a cop to make a WARRANTLESS ARREST for an alleged violation of any of those sections?
4000(a), 5200, & 5201, ARE DIRECTED TO THE "PRIVILEGE HOLDER". THEY TELL THE "PRIVILEGE HOLDER" WHAT THEY ARE OBLIGATED TO DO UNDER THE TERMS & CONDITIONS OF THE CONTRACT THEY HAVE WITH THE STATE FOR THE "PRIVILEGE" THEY APPLIED FOR AND WAS GRANTED UPON QUALIFICATION. The State didn't just simply ISSUE the PRIVILEGE because you became 18. You HAD TO go to the DMV store and APPLY for it. You filled out an APPLICATION (adhesion contract), you ASKED for something you didn't have that was OFFERED by the State through the DMV. You signed the CONTRACT UNDER PENALTY OF PERJURY. You jumped through all the hoops properly, gave them some $$$ and they GRANTED YOU A PRIVILEGE and issued you some stuff that INDICATES you have a VALID CONTRACT permitting the LAWFUL ENGAGEMENT REGULATED UNDER THE VEHICLE CODE.
That cop is initiating a CIVIL TORT CLAIM for BREACH OF CONTRACT on behalf of a NONcomplaining party AND HE'S COMMITTING A CRIME WHILE DOING IT.
SAVA HAS NOT BEEN OVERTURNED! See VEHICLE CODE SECTION 40300.5 - THAT'S WHERE YOU'LL FIND THE "ENABLING LANGUAGE" FOR A COP TO EXERCISE DISCRETION RE WHETHER TO MAKE A WARRANTLESS ARREST. You'll note that the ARREST is CONDITIONED on the cop's BELIEF that you're DRUNK, DRUGGED or a combination of the two. But the FACT REMAINS, THEY ARE UNDER NO DUTY/OBLIGATION/REQUIREMENT (SHALL), TO MAKE THE ARREST! They can if they WANT TO but they DON'T HAVE TO.
"'To be valid, administrative action must be within the scope of authority conferred by the enabling statutes. . . .' . . . 'If the court determines that a challenged administrative action was not authorized by or is inconsistent with acts of the Legislature, that action is void.'" (US Ecology, Inc. v. State of California (2001) 92 Cal.App.4th 113, 131-132.)
Hamilton v. Gourley (2002), 103 Cal.App.4th 351
[No. C038751. Third Dist. Oct. 31, 2002.]
IF, the operative term being IF, there's NO AUTHORIZATION for the cop to make a warrantless arrest, then THERE'S NO LAW OR RULE FOR THE COP TO COMPLY WITH.
QUESTION: DOES THE COP GET TO MAKE UP RULES ON THE FLY TO SUIT THE SITUATION? Not without violating his oath and the Separation of Powers Doctrine.
Now what happens if the cop guesses WRONG in the exercise of his discretion to make a WARRANTLESS ARREST?
Police officer may not rely on good faith, inarticulable hunches, or generalized suspicions to meet standard of reasonable suspicion to justify investigatory stop.
U.S. v. Velarde, 823 F. Supp. 792. (D. Hawaii 1993)
With regard to police training, police department failure to adequately train its officers may constitute a "policy" giving rise to governmental liability.
Ellis v. City of Fairburn, 852 F.Supp. 1568
"Ignorance of the law does not excuse misconduct in anyone, least of all in a sworn officer of the law."
In re McCowan (1917), 177 C. 93, 170 P. 1100.
"...an officer may be held liable in damages to any person injured in consequence of a breach of any of the duties connected with his office...The liability for nonfeasance, misfeasance, and for malfeasance in office is in his 'individual', not his official capacity..."
70 Am. Jur. 2nd Sec. 50, VII Civil Liability
See PC 236.
Now what MIGHT be the "causes of action" against an errant peace officer who makes an UNAUTHORIZED WARRANTLESS ARREST for NONcriminal behavior?
FALSE IMPRISONMENT, TRESPASS, ASSAULT, DISPARAGEMENT & DENIAL OF SUBSTANTIVE RIGHTS UNDER COLOR OF AUTHORITY, INTENTIONAL INFLICTION OF EMOTIONAL & PSYCHOLOGICAL TRAUMA, PUBLIC HUMILIATION
HOW CAN A "TRAFFIC STOP" BE "REASONABLE" IF IT'S NOT AUTHORIZED??? HOW CAN A COP POSSIBLY COMPLY WITH HIS OATH HAVING MADE AN ARREST WITHOUT AUTHORIZATION???
SAVA HAS NOT BEEN OVERTURNED AND INFRACTIONS OF THE VEHICLE CODE HAVE NOT BE "RE-CRIMINALIZED". THE PEACE OFFICER APPLIED THE STATE'S POLICE POWER TO NONcriminal BEHAVIOR.
Traffic experts and the public agree that traffic law enforcement is "criminal" only in a limited procedural sense.
People v. Lucas (1978) 82 Cal.App.3d 47
[Crim. No. 31889. Second Dist., Div. Four. June 22, 1978.]
It work$ out really well for the $ervant$ that the people they cho$e to $erve weren't taught any of thi$ when they were FORCED to go to $kool.
CALIFORNIA CIVIL CODE 3527. The law helps the vigilant, before those who sleep on their rights."A statute does not trump the Constitution." People v. Ortiz, (1995) 32 Cal.App.4th at p. 292, fn. 2 Conway v. Pasadena Humane Society (1996) 45 Cal.App.4th 163A statutory privilege cannot override a defendant's constitutional right. People v. Reber, (1986) 177 Cal.App.3d. 523 [223 Cal.Rptr. 139}; Vela v. Superior Ct, 208 Cal.App.3d. 141 [255 Cal.Rptr. 921], however, "the judiciary has a solemn obligation to insure that the constitutional right of an accused to a fair trial is realized. If that right would be thwarted by enforcement of a statute, the state...must yield." Vela v. Superior Ct., 208 Cal.App.3d. 141 [255 Cal.Rptr. 921Obviously, administrative agencies, like police officers must obey the Constitution and may not deprive persons of constitutional rights.Southern Pac. Transportation Co. v. Public Utilities Com., 18 Cal.3d 308[S.F. No. 23217. Supreme Court of California. November 23, 1976.]If evidence of a fact is clear, positive, uncontradicted and of such nature it cannot rationally be disbelieved, the court must instruct that fact has been established as a matter of law. Roberts v. Del Monte Properties Co., 111 CA2d. 69 (1952)If they can get you asking the wrong questions, they don't have to worry about answers.Thomas PynchonThey will do whatever we let them get away with. Joseph Heller
