I do not love the bright sword for its sharpness, nor the arrow for its swiftness, nor the warrior for his glory. I love only that which they defend. (J.R.R.Tolkien, The Two Towers)

When I carry a gun, I don't do so because I am looking for a fight, but because I'm looking to be left alone. The gun at my side means that I cannot be forced, only persuaded. I don't carry it because I'm afraid, but because it enables me to be unafraid. It doesn't limit the actions of those who would interact with me through reason, only the actions of those who would do so by force.

Marko Kloos "Why the Gun is Civilization"

Sunday, November 13, 2005

Opening Day AKA I must Be Getting Old

Yesterday was opening day of muzzling loading season for deer. Usually I get up a couple hours before daylight and am on my stand and ready to hunt long before the first streaks of gray break across the horizon. Yesterday I didn't even make it into the woods till well after daylight. The clock went off at 4 AM and I jumped (well actually sort of fell ) out of bed. I went to the front door to check out the temperature, saw the frost on the ground, read 24.1 degrees on the thermometer, and crawled back in bed to argue with myself about the foolishness of getting up so early. After about 10 minutes the more sensible side had convinced my wilder side that it would be best to sleep another hour or so. The winning argument was that my favorite place to hunt (pictured above) would be so crowded that it would be hard to find a place to park and with so many idiots in the woods it would be safer to go in after daylight. You can imagine my surprise when I pulled up to find only one other vehicle. As a matter of fact the only other vehicle was a couple of game wardens as I was coming out around noon to shed some of my extra clothing. That was the first time in about 20 years that I had had my license checked. The really funny part of this story is that I saw 2 does driving in and 2 more driving out but not a single deer while in the woods. So, I'll try it again Monday. Maybe I can get in the woods before daylight this time.

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14 Comments:

At 9:26 PM, Blogger the Contrary Goddess said...

because it is easier to leave a comment than to e-mail you --

have you seen this blog? I thought you'd be interested (picked it up from my counter):
www.booksbikesboomsticks.blogspot.com

Have fun. If you want a fix-er-up bike cheap, call -- we've got one. Just don't kill your fool self.

 
At 10:15 PM, Blogger H. Stallard said...

It's not my cup of tea. I just like to ride them not work on 'em. Didn't get to go hunting today. Spent all day working on the hardwood floor in the TV room. Finally got it all down. Been doing the trim and hanging blinds on the door and windows. Got to do some touch-up painting and finish one section of quarter round. I'm going to try to hunt on High Knob tomorrow. Hope it's not foggy...I always get turned around in the fog. If you don't hear from me in a couple of days send out a rescue team.

 
At 10:53 PM, Blogger Eleutheros said...

They checked your license?

Is it because you were toting a shootin' iron? I was once questioned by two TWRA agents when I was in the forest cutting wood, armed only with a bow saw. I told them to take a hike. They did.

What are the criteria for the wardens having leave to demand anything of you?

 
At 7:18 PM, Blogger H. Stallard said...

Anytime you're on national forest they can stop you and talk to you and if you're packing then that's their pc to ask for your license. Also (and here's the big loop hole) if they "suspect" that you might be engaged in some kind of illegal activity they can search you and your vehicle without consent. All they have to do is be able to "articulate" their suspicions in court. In Virginia, game wardens have more powers than any police local, county, or state.

 
At 10:51 PM, Blogger Eleutheros said...

The packing I can see. That seems reasonable probable cause that you intend to be hunting.

The questioning, maybe. It is public land. They can question but you don't have to answer and I seriously doubt they have powers to detain you without cause.

As to the search, I don't doubt you for a second. But I also don't doubt it wouldn't hold up if challanged on constitutional groundsm especially if it turned up nothing and the officers were clearly 'going fishing'. I would never give permission, but then I'd never interfer if they went ahead and searched the vehicle. It's just there'd be hell to pay later. My person, that might be a different matter. I'd gladly demonstrate I wasn't armed, but that'd be it.

Any law officer can search a vehicle without the owner's permission, but they need a warrant, and to get that they need probable cause.

I'm not a 'nothing to hide' type person. I think it does a lawman good when he's made to toe the line like the rest of us.

 
At 11:36 PM, Blogger H. Stallard said...

eleutheros said...
Any law officer can search a vehicle without the owner's permission, but they need a warrant, and to get that they need probable cause.


Yes, but if the officer happens to see something illegal in plain view in the vehicle or a drug dog hits on the vehicle he doesn't need your permission or a search warrent. He can't search your person until he has arrested you but he can pat you down (feeling through the clothing)for weapons.

However you would be surprised at the number of people who give permission to search when they have the right to say no. And most people don't know that they can limit a consensual search to exclude any areas of the vehicle they desire or stop it at anytime after it is begun as long as the officer has found nothing illegal. If he has, then it's not consensual any more.

And don't forget that the supreme court has said that a law enforcement officer can lie to you to get you to give a voluntary statement or permission to search. The only constraint is that it has to be voluntary.

 
At 11:09 PM, Blogger Eleutheros said...

The lesson here then is NEVER give permission for a search. NEVER. And always assume that if a law officer's lips are moving, he's lying. No disrespect nor animosity intended, those would serve no one well. But treat the officer, in the discharge of his duty, like a junk yard dog. They both have their uses, but treat them according to their function.

Says I, it is our obligation to know what the law is and insist that everyone, even (or especially) a lawman, follow it.

 
At 1:17 PM, Blogger H. Stallard said...

Never is correct, and be damn sure anything incriminating is out of plain view, and don't fall for the line "If you don't have anything to hide, you shouldn't object if I do a quick search then!" And if they threaten to bring in a drug dog, start timing them, they have to do it in a reasonable amount of time. How much depends on what the judge would say is reasonable but is usually from 20 to 40 minutes.

 
At 10:10 PM, Blogger Eleutheros said...

Harold,

This piqued my interest and I've been doing some research on it. What I've come up with shows me it's not so simple any more.

What the police can do depends on the level of involvement -- seems the levels are these in descending order of seriousness:

1) An emergency or where someone is endangered
2) You are under arrest
3) You are a suspect
4) A crime is being investigated (but you are not under arrest of a suspect)
5) None of the above

Seems the general rule goes like this: A lawman can is free to do what any citizen can do. He can attempt to engage you in conversation and look in your car windows just like anyone can.

You can tell him you do not want to talk to him and that's the end. Anything he does after that is illegal and inadmissable.

Under the 'plain view' doctrine, if a police officer sees something that is illegal, he can search a vehicle (or anything else) without a warrant. But it's tricky. In the case of seeing some asprin tablets on the dash, and the officer saying that he thought the tablets were drugs, as soon as he examines the tablets and sees that they hage 'Bayer' stamped on them, probable cause disappears and any further search is illegal. This opposed to finding a bag of heroin, then the encounter gets ratchted up to a suspicion or arrest and the vehicle can be searched.

The underlying bit seems to be that if you do indeed find contraband, you have grounds for an arrest, and once you've made an arrest or intend to, you can do a warrantless search. But you can't say you thought the socket wrench was a gun and then when you obviously see that it's a socket wrench go ahead and search the rest of the car.

A law officer (of any kind) can do a pat down for weapons if he can establish that he had reasonable concern for his safety. He can ONLY do a pat down and only look for weapons. Police are using this as an excuse to find drugs on people by patting them down for this "Terry Pat" and then demanding to know what's in that bottle in their pocket. You do NOT have to answer that question nor produce what is in your pocket. They can ONLY search for weapons.

Here's the thing I didn't clearly understand, and I'm glad I do now, see how useful your blog is: Unless a police officer uses force, it is by definition a voluntary search. If the police ask to search, are ambiguous, ask in a confusing manner, lie, whatever and you say nothing, you have consented. You MUST say in no uncertain terms, "I do not give you permission to search" or "You do not have permission to search.."

If the police ask you to do something, you must say "I do not agree to (whatever) [step out of the car, empty my pockets, etc,] If they use force, it is a non-voluntary compliance. If you obey their commands for any reason, it is voluntary compliance. For instance, the on stopping someone in this state, the police will routinely say in a commanding voice "I want you to stay in the vehicle." If you don't want to, you must state clearly that you do not agree to comply with the request.

As far as the police lying, they can do this. They can generate any lie they want to try to get voluntary cooperation from you. BUT if you ask them one of the following questions, they MUST answer you and answer you truthfully:

Am I under arrest?
Am I a suspect in a crime?
Are you investigating a crime?
Am I free to go?

The reason these questions are important is because really the only way one is going to run afoul of the police is when they are on a fishing expidition for drugs. How many times do you go fishing for bank robbers or check forgers or rapists? Never, right? It's always possession of drugs. That's why the 'War on Drugs' is such a blight on our culture. The police would have very little motivation to swagger up and sweat out innocent people were it not to look for drugs.

And if the answer to 'arrest', 'suspect', 'investigating a crime' is 'yes', then the officer has increasing powers to command you and demand an accounting. It'd be a good idea to cooperate because you could easily find yourself interfering with an investigation.

But in the case of a fishing expidition, ask if you are under arrest. An arrsst without probable cause is a very serious matter. Then ask if you are a suspect. These two questions cut off most of the officer's discressions. THen ask if he is questioning you as part of the investigation of a crime, this means specifice crime. On a fishing expidition the answer will be 'no'. Next ask if you are fee to go. And you are gone.

Now, concering drug dogs. What If found was this: If you are stopped at random or for a traffic violation, and the police ask to search your vehicle and you refuse, they CANNOT then use the drug dogs because that in itself constitutes an illegal search unless there is other probable cause. They may do it anyway because they don't know any better. You must state clearly that you DO NOT give permission for a drug dog search. Any evidence they find will not hold up in court and in fact you would be due redress for an illegal search. Drug dog searches are only strictly legal at roadblocks and such where everyone is searched, or oddly enough, in parking lots were there is the notion that the dog and officer were just passing by.

Under no circumstnces argue with a police officer. State your non-compliance and lack of permission, but that's all. Never touch a police officer. Never walk or dive away unless the officer acknowledges that you are doing so. If a police officer is acting illegally, let him do it with your protests clearly stated. Let the courts sort it out.

And, oh, don't commit crimes. It would really put you in a compromising position.

But don't cooperate with a fishing expiditon.


How did I do?

 
At 11:40 PM, Blogger H. Stallard said...

You pretty much have it covered.

A couple of points...we use the walk up to John Doe on the street and engage him in general conversation a lot because most people feel like they have to talk to the police when in reality they can turn around and walk away like you would anyone else on the street. What we're hoping for is that you in some way incriminate yourself and then it moves up a notch to the investigating a possible crime level where you have to talk to us.

The plain view thing doesn't work in a residence. If we go to a call say for domestic violence and see a bag of heroin then we have to go and obtain a search warrant. But on your person or in a vehicle we can do a warrantless search.

On the pat down if we feel what might be a bag of dope we can ask what it is hoping that you will rat yourself out.

Having you stay in your vehicle is a two fold thing. First and most on our mind it is a safety issue. You are in the vehicle in a limited space and have limited mobility whereas we can approach and stop just behind the driver where we can see if there is a weapon. The other thing is it lets us be in control of the situation.

On the drug dog, if you are stopped for a traffic violation we can run the dog around the outside of your vehicle without your permission but unless the dog hits or you give permission we can't go inside it. At a road check we cannot use the dog in the road to check every car but if you are asked to pull to the side for some reason then it's ok to run the dog around the outside of the vehicle.

I don't know how many tickets I've seen issued simply because the person argued with the officer. In Virginia simply touching a police officer can get you a mandatory 6 months in prison and a felony record.

http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+18.2-57

 
At 9:47 AM, Blogger Eleutheros said...

Odd to me that the supreme court has ruled that a drug dog is not a search as defined by the 4th ammendment. However, things are changing.

A speeding conviction based on VASCAR is practically worthless against the savvy. It is do notoriously unreliable and has such precedent for being thrown out of court that all one generally has to do is show up in court with a copy of the precedents and the conviction is thrown out. The traffic courts don't want their judgements overturned. So VASCAR has no value to the police other than intimidation. The alternatives that do hold up in court are much more expensive.

Like that, there was a recent appeal of drug dog search in Florida where the conviction was overturned. See:

htthttp://rexcurry.net/drugdogmna.html
p://rexcurry.net/drugdogsmain.html

What the future holds is that local police agencies will have to keep such strict records and pay for continual training (the police themselves cannot do the training) else what the drug dog finds will be inadmissable.

The gist of the decision is was this: since the police could not document the reliability of their dog, they in fact had no probable cause for a search and the evidence they found was thrown out.

Also this that clears up a point I didn't understand. If you are stopped for a legitimate reason (or fabricated legitimate reason) and the police request a search which you refuse, they can detain you no longer than it takes to write you a ticket. You are not required to wait for the dog. If you are detained any longer than the interaction would have taken sans dog, the evidence is inadmissable.

Concerning touching an officer. While six months and felony might seem harsh, it isn't. It really isn't much different if you're NOT a police officer. Touching someone against their wishes very quickly crosses the line into assault. A while back at a local government council meeting, someone stood up to say his piece. The mayor demanded repeatedly that he be quiet and leave. He did not. The mayor then called for the bailiff to remove the man and the bailiff very calmly and almost politely took the man by the upper arm to escort him out of the building. The man equally as calmly turned to the bailiff and asked "Am I under arrest?" The bailiff answered in the negative. The man then said, "Then take your hand off me or I will prefer assault charges." The bailiffm being knowledgeable, immediately let go of the man and backed away.

Which brings up an important aspect that might be OT to you blog, but you were a teacher so maybe it isn't. One of the reasons for sending children, especially boys, to PS is the idea of "socialization". Boys will be boys and should learn to stand up for themselves to prepare them for the real world. But in the real world, bullies aren't met with fisticuffs, they are felons who go to jail. The shoving and punching that we ignore and even encourage in children, if done by an adult is a crime.

 
At 11:02 AM, Blogger Sarah Elaine said...

What do you do with the deer after you've shot one? Do you haul it away and eat it later?

 
At 11:22 AM, Blogger Eleutheros said...

Not Harold!

He keeps A1 sauce and an NRA bib in his hunting pack. Just as soon as the deer is down, he's there with the Coleman stove eating the whole thing right on the spot.

 
At 12:58 PM, Blogger H. Stallard said...

Bibs are for sissies and A1 sauce kills the best flavor of the meat, just a little salt and pepper if you please. The heart and liver are eaten raw on the spot [as in Dances With Wolves] but the rest is taken home, skinned, quartered, butchered and made into jerkey except for the tenderloin which is lightly floured and fried to a golden brown in bacon grease.

 

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