Re: Warrant Based on Illegal Search
What we do reject today is any per se invalidation of a state or local warrant system on the ground that the issuing magistrate is not a lawyer or judge. Communities may have sound reasons for delegating the responsibility of issuing warrants to competent personnel other than judges or lawyers.
The relevant Florida statute and Tampa charter provisions are set forth below.
1. Section 168.04 of Fla.Stat. (1965) reads as follows:
"The clerk may administer an oath to and take affidavit of any person charging another with an offense by breach of an ordinance, and may issue a warrant to the marshal to have the accused person arrested and brought before the mayor for trial. The marshal may, in the absence of the mayor and clerk from the police station, administer oaths to affidavits of complaints and issue warrants for the arrest of persons complained against."
2. Section 495 of the Charter of the City of Tampa, enacted by the legislature of the State of Florida in Section 17, Chapter 5363, Laws of Florida 1903, reads as follows:
"The Chief of Police, or any policeman of the City of Tampa, may arrest, without warrant, any person violating any of the ordinances of said city, committed in the presence of such officer, and when knowledge of the violation of any ordinance of said city shall come to said chief of police or policeman, not committed in his presence, he shall at once make affidavit, before the judge or clerk of the municipal court, against the person charged with such violation, whereupon said judge or clerk shall issue a warrant for the arrest of such person."
3. Section 160 of the Charter of the City of Tampa, enacted by the legislature of the State of Florida in Section 1, Chapter 61-2915, Laws of Florida 1961, reads as follows:
"The city clerk of the City of Tampa, with the approval of the mayor, may appoint one or more deputies, such deputy or deputies to be selected from the approved classified list of the city civil service, and to have and exercise the same powers as the city clerk himself, including but not limited to the issuance of warrants. One or more of such deputies may be designated as clerks of the municipal court."
Hmm, could be by warrant officer, I was assuming it was a police officer? I could be wrong!
Regardless, I was just pointing out authority other than judges as outlined in Shadwick!
Re: Warrant Based on Illegal Search
Getting back to the OP....
You say you were illegally arrested. If there was a warrant out for your arrest, you were not illegally arrested.
If you were not named in a warrant, only a judge can declare an arrest and/or search illegally or wrongfully performed.
There are no guarantees in law.
Re: Warrant Based on Illegal Search
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cdwjava
But WHY do you believe the search was illegal? Is it illegal because YOU say it was illegal? Or is it "illegal" because a court of proper jurisdiction has ruled the search unlawful?
Just because you say it is so does not make it true.
Obviously, but I need to prove that in COURT, not HERE just to appease you. if I already KNOW the search is illegal, then WHY it is illegal is irrelevant for the purposes of my question. If I am either wrong or unable to prove it in court, then obviously I will not be able to get any other cases dismissed based on that. However, NO ONE will be able to know that until I actually go to court with it, so any other information based on this will need to be gathered anyway.
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So they got lucky when they managed to contact a victim and confirm that the property was stolen? Wow! Those cops should play the lottery!
Again if you are not here to help people with their defenses then do not post in defense threads.
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They don't need a reason to act on a hunch. They need a reason to make an arrest or to effect a detention, even to conduct a non-consensual search, but they do not need any reason at all to suspect that something might be stolen.
No, they need a reason to do a check to find out, though, unless their check does NOT involve any searches or arrests.
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If you were lawfully arrested (on a warrant or via probable cause) then most any evidence discovered in your possession at the time of the arrest will be free game for them to inspect further with some few exceptions.
If they SEARCHED anything that was not on your body and not taken with you into the jail, without consent or a warrant, then it is illegal. If you were illegally arrested, then ANY search was also illegal if not consented to.
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Now, if PD#1 did not arrest you based upon an arrest warrant, why did they stop and search you?
Irrelevant. I want answers to my questions, not a prosecution. if it was important I would mention it.
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Sounds like good police work to me. Good call.
If it weren't for the fact that it was illegal in the first place, the fact that they destroyed my property, and the fact that they are pressing charges themselves which is also illegal regardless of the fact that it is commonly practiced, then you would be right. But in actuality it was horrible police work and would have only been "good" police work if they had had reason to believe I had stolen property before they contacted me.
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Where did you get THAT?!?
Constitution for the united States of America.
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First, an arrest requires only that there exists probable cause to believe that a crime has been committed and the person arrested committed the offense. It does not require absolute certainty and is a relatively low hurdle to leap.
Of course not. It does require a warrant, though.
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Second, there are a number of exceptions to the warrant requirement with regards to a search.
Not many, and I know what they are.
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If you were in a vehicle at the time of the arrest, there are quite a few exceptions because of the nature of the vehicle.
Not actually. I am pretty certain that there are many laws mentioning exceptions which are not legal for the laws to exist. I may be wrong about the existence of these laws. However there was a court case decided last week by the Supreme Court in which it state automobiles can NOT be searched incident to arrest unless something is in plain view etc. Citing of the case is not important enough for me to search through my e-mail to find it because you obviously do not believe in abiding by decisions for the Supreme Court.
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Why were you arrested at the outset? Why were you stopped/detained/arrested and searched? What was the reason that PD #1 stated as to why they arrested you?
That is irrelevant. Again. I am not here for you to collect information abut me and send it to the prosecutors, or to help you have other people arrested when they do not deserve to be.
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Yes, there ARE important questions if you want a fair and impartial opinion of your situation.
I don't want an opinion of the "situation" I want only to know that IF AN ILLEGAL SEARCH WAS PERFORMED, AND EVIDENCE (that evidence being that the owner of the property confirmed that she had had such an item stolen from her AFTER the item was found in the illegal search) OBTAINED, AND A WARRANT LATER GRANTED BASED ON SAID EVIDENCE, IS THE CARRYING OUT OF THAT WARRANT STILL ILLEGAL? It is a semi-simple question and does not require a "situation" to answer. Although you do know part of the situation; you know what particular "evidence" was obtained BECAUSE of the search, other then the item itself. You may say, "Yes that is illegal but only if the search was actually illegal". Well if that is the case you can still answer "yes" because the fact that the search was illegal is included in the question, and if the search in my case was legal then your answer to the question I asked would still be correct, it just wouldn't apply to my case.
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again, not true, always and in your situation, I do not believe it would be true, based on your rendition of the story.
But hey, you already have all the answers so why do I bother?
I don't understand your reply. Any evidence of items obtained through an illegal search is always illegal, and I doubt that you would believe that not to be true. but that was the only thing I mentioned as knowing or being a fact in the quote you replied to right there.
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BOR
Murray may offer some guidance, also citing Wong Sun, a seminal 4th AM case. This is exclusionary rule law.
Held: The Fourth Amendment does not require the suppression of evidence initially discovered during police officers' illegal entry of private premises if that evidence is also discovered during a later search pursuant to a valid warrant that is wholly independent of the initial illegal entry. Pp. 487 U. S. 536-544.
http://supreme.justia.com/us/487/533/case.html
Your state constitution may or may not afford more protection.
Thank you for attempting to answer my question. No offense or derogatory-ness is meant by the word "attempting".
There was no subsequent search, or else I would have mentioned it.
I'm not sure if anything in that case apllpies to me. From what I read, they discussed the actions required to execute a search warrant when one exists, and the alreaady-known fact that when an illegal search is performed the evidence is not able to be used. If there was anything in there abuot a warrant granted based on the search evidence, I missed it.
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cyjeff: The search was illegally performed, and the warrant was issued based on evidence of the search. Since these both happened as results of each other on the same day, there was obvioulsy no time to go to court to prove the search was illegal before the warrant was issued. The jduge cannoot rule on whether or not a search was illegal before issuing a warrant if they have not yet recieved the evidence showing such. In addition the warYou seem to be oversimplifying and I am not sure whether or not you understood it, although you seem like you would have.
Re: Warrant Based on Illegal Search
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mewgirl
Obviously, but I need to prove that in COURT, not HERE just to appease you.
You're right. But without anything to evaluate, all any of us can do is shrug our shoulders and wave. We can merely affirm your contention that IF the search was illegal and IF the arrest was illegal, you should be okay.
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if I already KNOW the search is illegal, then WHY it is illegal is irrelevant for the purposes of my question.
Nothing you have written shows that the search was illegal. You SAY it was illegal, but your beliefe and $3.85 will buy a Venti Mocha at Starbucks. It's not what you or I say, it's what a court says. And since you have also elected not to provide even an inkling of why you believe the search was illegal, that, too, cannot be evaluated.
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Again if you are not here to help people with their defenses then do not post in defense threads.
All points of view are important in crafting a defense. And, sorry, but I do not see a "defense" thread on these boards.
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No, they need a reason to do a check to find out, though, unless their check does NOT involve any searches or arrests.
Where did you get THAT idea??
They don't need a reason to check anything. They need a reason to seize things or make an arrest, but they don't need a reason to inquire further including phone calls, questions, etc.
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If they SEARCHED anything that was not on your body and not taken with you into the jail, without consent or a warrant, then it is illegal.
That's not true at all. There are numerous exceptions as has been explained to you. Whether you choose to believe that or not is up to you.
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If you were illegally arrested, then ANY search was also illegal if not consented to.
Possibly ... but, this is not a guarantee. If arrested "illegally" (that is without probable cause) then any evidence discovered as a result of that arrest can probably be suppressed. However, other searches that might have occurred prior to the arrest and maybe even afterwards might be perfectly lawful - it depends on the details. The devil is always in the details.
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Irrelevant. I want answers to my questions, not a prosecution. if it was important I would mention it.
It is absolutely relevant! Why PD#1 stopped and searched you will be key to determining whether or not they had cause to examine the evidence that ultimately led to your arrest. I don't know why you so adamantly think it was not relevant except that it shows your total lack of knowledge of the law.
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Constitution for the united States of America.
NOWHERE in the Constitution does it state what you wrote:
ALL arrests of any kind MUST have a warrant except in danger, and ALL searches of any kind MUST have either a warrant or consent, except in certain situations.
This contention is patently untrue.
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Of course not. It does require a warrant, though.
An arrest does not REQUIRE a warrant. Some do, but most are not based upon an arrest warrant.
Where do you get these misconceived legal notions??
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However there was a court case decided last week by the Supreme Court in which it state automobiles can NOT be searched incident to arrest unless something is in plain view etc. Citing of the case is not important enough for me to search through my e-mail to find it because you obviously do not believe in abiding by decisions for the Supreme Court.
That was the Gant decision and it dealt with only one aspect of a search of a vehicle incident to arrest. It left open all the other avenues, and it also specifically allowed for a search if there was cause to believe that evidence of the crime for which the suspect was arrested might be in the vehicle. Then, of course, there is the impound inventory exception, among others ... depending on the details.
Gant was very specific, and unless their whole case rested upon Gant, then you're relying too heavily on a decision that might not apply.
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That is irrelevant. Again. I am not here for you to collect information abut me and send it to the prosecutors, or to help you have other people arrested when they do not deserve to be.
First, I could care less about your case and have no interest in sendin anything to anyone. Second, I have no clue who you are or even what county in your state you live in, so even if I was so inclined to dime off your posting on a message board, it would be a waste of time.
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I don't want an opinion of the "situation" I want only to know that IF AN ILLEGAL SEARCH WAS PERFORMED, AND EVIDENCE (that evidence being that the owner of the property confirmed that she had had such an item stolen from her AFTER the item was found in the illegal search) OBTAINED, AND A WARRANT LATER GRANTED BASED ON SAID EVIDENCE, IS THE CARRYING OUT OF THAT WARRANT STILL ILLEGAL?
If everything is ruled by a competent court to have been "illegal" then you should go free. Somehow, I doubt that will be the case. But, if everything was illegal you win.
However, there may be other avenues for the prosecution to get there ... if the victim could otherwise identify you as the suspect is one way.
But, you have not given us anything to go on, so we are left with the simple and probably incomplete answer: If everything was illegal you're in the clear.
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It is a semi-simple question and does not require a "situation" to answer.
Sure it does. Sorry you cannot see that.
I don't understand your reply. Any evidence of items obtained through an illegal search is always illegal, and I doubt that you would believe that not to be true. but that was the only thing I mentioned as knowing or being a fact in the quote you replied to right there.
I suppose all we can really recommend is that you consult good legal counsel if you hope to have the remotest chance of prevailing in whatever this incident involves.
- Carl
Re: Warrant Based on Illegal Search
mewgirl, you have insulted just about everybody here.
If you know so damn much, why don't you just research this yourself and show us all how great you are.
The truth is, you are wrong in many of your suppositions. Evidence from an illegal search can be used against you in some situations. You refuse to tell us anything about yours so nobody here can begin to tell you if it may be applicable.
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If they SEARCHED anything that was not on your body and not taken with you into the jail, without consent or a warrant, then it is illegal.
this is not true. Even with the recent SCOTUS decision, there are still times your car can be searched without a warrant.
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First, an arrest requires only that there exists probable cause to believe that a crime has been committed and the person arrested committed the offense. It does not require absolute certainty and is a relatively low hurdle to leap.
Of course not. It does require a warrant, though.
again, you are wrong. For some reason, the millions of people that are arrested without a warrant but due to the evidence the officer sees of a crime when interacting with the person are setting in jail because there is no warrant needed in such a situation are still there, even with you claiming they cannot be arrested without a warrant.
I guess every criminal defense attorney in the country just has it all wrong.
Why don;t you go out and correct them since you know everything.
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Now, if PD#1 did not arrest you based upon an arrest warrant, why did they stop and search you?
Irrelevant. I want answers to my questions, not a prosecution. if it was important I would mention it.
No, it isn't irrelevent. It is very relevent to the situation where you claim the search was illegal.
but again, you know everything. I don't even know why you are here asking questions. Why aren't you out teaching in some law school somewhere?
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If it weren't for the fact that it was illegal in the first place, the fact that they destroyed my property, and the fact that they are pressing charges themselves which is also illegal regardless of the fact that it is commonly practiced, then you would be right
You claim it is illegal. I suspect they do not agree with you. And to the officers pressing charges? How about the state is pressing charges. That is how it works in a criminal trial.
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ALL arrests of any kind MUST have a warrant except in danger, and ALL searches of any kind MUST have either a warrant or consent, except in certain situations.
Where did you get THAT?!?
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Constitution for the united States of America.
again, you are just plain wrong. An arrest does not need to have a warrant issued. Dang, in many state I could arrest you and I'm just a plain ol' citizen. No warrant needed.
and I love your explanation about searches. They all need warrants, except in certain situations. Ya, that about covers it. They all need warrants except those that don't.
and of course, your response to me:
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again, not true, always and in your situation, I do not believe it would be true, based on your rendition of the story.
But hey, you already have all the answers so why do I bother?
I don't understand your reply. Any evidence of items obtained through an illegal search is always illegal, and I doubt that you would believe that not to be true. but that was the only thing I mentioned as knowing or being a fact in the quote you replied to right there.
there are times where a search may on its' face be improper but due to other circumstances, the evidence recovered by such a search is still admissable. Without knowing why your search was illegal, it is impossible to determine if this is applicable to you or not.
So no, not all evidence gained from an illegal search is considered to be not admissable, sometimes, depending on the situation. But hey, we don't need to know the situation. You have that under control. So, my answer to; is the evidence admissable?
maybe
Re: Warrant Based on Illegal Search
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mewgirl, you have insulted just about everybody here.
Haven't insulted you. In fact I have only insulted one human and that was in another thread.
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If you know so damn much, why don't you just research this yourself and show us all how great you are.
Because it probably isn't written directly in any statues, and if it is it would be hard to find.
In fact I AM researaching it; by asking people here.
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Evidence from an illegal search can be used against you in some situations.
Okay. I don't care, because I know my evidence is illegal. I wasn't asking whether or not the SEARCh had a fult or would have been able to be used if there hadn't been a warrant. But I did describe EVERYTHING that happened in order to get the warrant, so I need to know if the warrant negates the search. Again if the search is illegal for the purposes of my question then it doesn't even really matter if it was ACTUALLY illegal since my question only talks about it if it wasn't.
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this is not true. Even with the recent SCOTUS decision, there are still times your car can be searched without a warrant.
Only if they can see something, in which case no search was conducted in order to see it. But it doesn't really matter because in MY case the search was illegal even if there are other cases where a search was legal.
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again, you are wrong. For some reason, the millions of people that are arrested without a warrant but due to the evidence the officer sees of a crime when interacting with the person are setting in jail because there is no warrant needed in such a situation are still there, even with you claiming they cannot be arrested without a warrant.
I am perfectly aware of this. I never said they WON'T arrest you, and I never said they WON'T convict you. I simply said that it's illegal if they do. Many people who are arrested illegally don't know it, tehrefore they won't use it as a defense. Many of the people you just mentioned even plead guilty!
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Now, if PD#1 did not arrest you based upon an arrest warrant, why did they stop and search you?
Irrelevant. I want answers to my questions, not a prosecution. if it was important I would mention it.
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No, it isn't irrelevent. It is very relevent to the situation where you claim the search was illegal.
No, it's not, since I am not asking for help with that case. What if the case was ALREADY dismissed? How do you know it WASN'T already dismissed? how do you know it was not ALREADY "rules by a judge" that the search was illegal? I am not talking about that case because I do not need help with that case in this regard.
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If it weren't for the fact that it was illegal in the first place, the fact that they destroyed my property, and the fact that they are pressing charges themselves which is also illegal regardless of the fact that it is commonly practiced, then you would be right
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You claim it is illegal. I suspect they do not agree with you.
It doesn't matter whether or not the POLICE agree with me....
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And to the officers pressing charges? How about the state is pressing charges. That is how it works in a criminal trial.
And do you REALLY believe that "the State" would be able to provide proof of loss to "the State" in ANY criminal case?!
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An arrest does not need to have a warrant issued. Dang, in many state I could arrest you and I'm just a plain ol' citizen. No warrant needed.
You can make a citizen's arrest in any state. It is under common law. However, if you are a citizen and you are "arresting" me then it means you have a complaint against me. When the police arrest you without a warrant, they do not usually have a complaint against you. I believe I already quoted the Constituion here. If not then it was in the part of the post that got deleted by Internet Explorer.
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and I love your explanation about searches. They all need warrants, except in certain situations. Ya, that about covers it. They all need warrants except those that don't.
Actually what I said was more along the lines of, "ALL seaches need warrants except for in "certian circumstances". There was nothing in view and those circumstances did not apply.
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there are times where a search may on its' face be improper but due to other circumstances, the evidence recovered by such a search is still admissable.
Okay, but in this case, the search was wholly illegal. All other circumstances that do not revolve arounf the search - for instance, the fact that they called the victim, but could not have known to call the victim if they had not illegally searched the automobile - was mentioned and explained here.
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Without knowing why your search was illegal, it is impossible to determine if this is applicable to you or not.
No, you are wrong; the idea you are trying to cnvey would be correctly stated if you said that without knowing the additional circumstances surrounding it, it would be impossible to determine. But I have provided the infomration on the aditional circumstances.
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So, my answer to; is the evidence admissable?
maybe
I didn't ask if "the evidence was admissible". The fact that I had the item in my posession is obvioulsy not "admissible". But, there was more evidence besides that gathered before the warrant was issued... sort of, since knowing that the item WAS stolen but not knowing that I HAD the item in my posession would actually obviously not show in any way that I had stolen it. But anyway, like I said I did not ask if the "evidence is admissible"; that being the evidence obatined due to the search which was the fact that I had the items. What I asked was whether the fact that they had a warrant makes the fact that they had "no evidence available to obtain the warrant with" irrelevant to the case, or not.
I think.
Actually what I asked was made clear in the first post, but since no one (except for on human) wanted to answer it I ended up having to try and rephrase it here.
Re: Warrant Based on Illegal Search
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mewgirl
You can make a citizen's arrest in any state. It is under common law.
In my state I can only arrest you if I have reason to believe you have committed a felony, and it is not common law, it is statutory law.
2935.04 When any person may arrest.
When a felony has been committed, or there is reasonable ground to believe that a felony has been committed, any person without a warrant may arrest another whom he has reasonable cause to believe is guilty of the offense, and detain him until a warrant can be obtained.
Effective Date: 10-01-1953
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However, if you are a citizen and you are "arresting" me then it means you have a complaint against me.
Right, if I arrest you I am the complianant.
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When the police arrest you without a warrant, they do not usually have a complaint against you.
Right and Wrong, when an officer arrests you, they, on behalf of the government, are the complainant, unless on authority of a seperate complainant.
If a misdemeanor arrest is effected without a warrant, it generally means the offense was committed in thier presence, so they themselves can be the complainant or someone else at times.
Re: Warrant Based on Illegal Search
Folks....
This dog and pony show is getting tiresome.
OP, until you tell us why the initial stop is going to get thrown out of court... GUARANTEED... then it is almost impossible to help you.
We can play what if all day.. but it won't mean a damn thing.
Re: Warrant Based on Illegal Search
Probation violation.
Don't ask me how I know...I just...know...:cool:
Now, is it illegal for them to search her car while being arrested?
I'm really not sure, but I AM sure they could def. get a warrant, and hold that car until such time as the warrant was signed off.
Re: Warrant Based on Illegal Search
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mmmagique
Now, is it illegal for them to search her car while being arrested?
.
Sometimes it is; sometimes it isn't