Traffic Stop Is an Arrest

[weishaupt1776]

Are you being detained from going about your normal course of action?
Or from what you want to do?
Are you free to move as you please?
Or have you been "taken into custody"(custodial arrest)?
But is your Life, Liberty, & Property(LLP) at stake in any way?
Have you been told that you are not free to move about?

Then YOU ARE UNDER ARREST, YOU CRIMINAL, YOU.

From Clyde:*
*

• "A seizure of the person within the meaning of the Fourth and Fourteenth Amendments occurs when, "taking into account all of the circumstances surrounding the encounter, the police conduct would ‘have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.'"* Florida v. Bostick, 501 U.S. 429, 437 (1991) (quoting Michigan v. Chesternut, 486 U.S. 567, 569 (1988)).* This test is derived from Justice Stewart's opinion in United States v. Mendenhall, 446 U.S. 544 (1980), see California v. Hodari D., 499 U.S. 621, 627-628 (1991), which gave several "[e]xamples of circumstances that might indicate a seizure, even where the person did not attempt to leave," including
  the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.
  Mendenhall, supra, at 554."* Kaupp v Texas, No 02-5636 (2003).
  *
  *It must be acknowledged at the outset that a traffic stop significantly curtails the "freedom of action" of the driver and the passengers, if any, of the detained vehicle.* Under the law of most States, it is a crime either to ignore a policeman's signal to stop one's car or, once having stopped, to drive away without permission.* E.g., Ohio Rev.Code Ann. § 4511.02 (1982).* Certainly few motorists would feel free either to disobey a directive to pull over or to leave the scene of a traffic stop without being told they might do so. *Partly for these reasons, we have long acknowledged that
  stopping an automobile and detaining its occupants constitute a "seizure" within the meaning of [the Fourth] Amendmen[t], even though the purpose of the stop is limited and the resulting detention quite brief.
  Delaware v. Prouse, 440 U.S. 648, 653 (1979) (citations omitted).* Berkemer v McCarty, 468 U.S. 420,*436 (1984)

I want My Speedy Trial, then:

• We hold here that the right to a speedy trial is as fundamental as any of the rights secured by the Sixth Amendment.* That right has its roots at the very foundation of our English law heritage.* Its first articulation in modern jurisprudence appears to have been made in Magna Carta (1215), wherein it was written, "We will sell to no man, we will not deny or defer to any man either justice or right"; but evidence of recognition of the right to speedy justice in even earlier times is found in the Assize of Clarendon (1166).* Klopfer v North Carolina, 386 U.S. 213 (1967).**
  *
  There is confusion in the time that the speedy trial starts to run, even among judges.* In the states you will have to flesh this out with the courts interpretation of the speedy trial rule for that state.*However, such is not the practice of the courts, so they by rule mislead defendants into thinking by court rule it starts at arraignment which is not the case.
  *
  Recently as well, they have relaxed the rules as far as time exclusions are concerned and added buffer time.* These variations should be objected to both at the federal and state level as a abusing the intent of the Constitutions specified right to speedy trial.* Also, you should demand your speedy trial immediately upon learning of any cause against you, and crying bloody murder for every delay.* You should show that you are irreparably injured in life, liberty and property by such and you should never waive speedy trial under any circumstances.* If after conviction other relevant evidence appears, then you can always move back to court to offer the new evidence.
  *
  It is best to sit in on a few short trials to see what happens and do a little study ahead of time.* When it happens to you, you want to be ready for it no matter when it happens.* Today it is not a matter of if it will, it is a matter of when it will.* It may only be a simple traffic matter or it might be a false accusation.* Many innocent men have sat in prison for many a* year because they didn't know how to defend themselves.* Even if you hire an attorney, you better know his job better than he does, because it is you that will suffer not him.* I think there should be a law that an attorney should serve the first tenth of the sentence for his client for losing the case.* If they spent some time behind bars (probably where they all belong) for losing cases, there would be far less cases compromised,*on ignorance of the defendant, on circumstantial evidence, false venue, lack of jurisdiction,*on hearsay evidence, on phony charges, on absolutely no evidence and any number of other udderly absurd trial deformations.

*

in georgia, there is case law that says your right for speedy trail starts the moment you are arrested. if not given the trail within 2 terms of court, then you are automatically acquitted by law. They try to trick you and even tell the clerks that you cannot file any documents in your case until you are indicted. in most counties, they let a prisoner set for months sometimes without indicting them and the county makes a lot of money off that. now, going back to the police stop. you can argue this in court, but, again, you go into THEIR trap. they gonna ignore the kidnapping. but, you can use this inoformation to put a claim against the cop, district attorney and whoever joins the action for kidnapping, stealing your vehicle, etc. conspiracy, rico. true bill them and start invoicing them.

Has anyone out there filed any claims against cops, prosecutors, and given them true bills, etc, ever been successful doing that? Any experiences to list on this site, love to hear it!! I still can't find any "law" in any books stating about giving fingerprints or picture. I know they can try to keep you, but how can they bring you up for charges without that stuff? They can't, unless you have a warrant somewhere else, then they try to send you there.

[TheBlackTruth]

This is a good thread and is very important for people to be aware of when contimplating the various issues at law surrounding the typical "traffic stop" and resulting criminal process that generally ensues.

Other tests to be aware of is "Terry" and, most recently "Hiibel". To be aware of these will let the prepared soon-to-be-defendant begin building his case right there on the side of the road.

Points:
At the side of the road, it is good to establish 3 things out loud.
1) Am I free to leave? (Mendenhall)
2) Identify yourself (Hiibel)
3) Fifth amendment reservation of right not to provide evidence against yourself in a criminal investigation. Refuse to answer any more questions without your assistance of counsel present. (Terry)

These three things will form an airtight case of false arrest or improper warrantless arrest. The state will not be able to wiggle out of it.

-BT

[weishaupt1776]

Dang, BT! I've been waiting all day for you to get a piece of this. Thanks for the concise & powerful briefing!

[Vincenzo]

OK, do what has to be done... then you can do even more... www.Copwatch.com and also www.jail4judges.org ahhh justice is sweet now you can ticket them....Vincenzo

[TheBlackTruth]

Originally Posted by Vincenzo

OK, do what has to be done... then you can do even more... www.Copwatch.com and also www.jail4judges.org ahhh justice is sweet now you can ticket them....Vincenzo

Well a Title 42 action is much more effective, but it's definitely good to report mis-behaving servants.

-BT

[weishaupt1776]

R.I.C.O. - Not so Suave for them.

BTY, BT. Any further developments regarding the contact info I provided for you regarding the Trezevant stuff?

[weishaupt1776]

STATE vs. VALENTINE, 132 Wash. 2d 1, 935 P.2d 1294, 1997
*
Nevertheless, both parties have placed that issue sharply in focus both in their briefing and at oral argument, which consisted largely of discussion of this very issue. In our review of the law, beginning with Rousseau, we have discovered that cases from our court and from the Court of Appeals have created confusion as to whether one who is illegally arrested may resist the arrest when the arresting officer’s acts threaten only a loss of liberty. For example, although the Court of Appeals has cited {*8} Rousseau for the proposition that a defendant was justified in resisting an unlawful arrest, State v. Schulze, 51 Wash. 2d 878, 883, 322 P.2d 839 (1958), the Court of Appeals, two decades after Rousseau, stated the rule: "In State v. Rousseau, 40 Wash. 2d 92, 241 P.2d 447 (1952), it was held that one may not resist with deadly force an unlawful arrest which merely threatens to deprive him of his liberty and not to do great bodily harm." State v. Madry, 12 Wash. App. 178, 181, 529 P.2d 463 (1974), review denied, 85 Wash. 2d 1004 (1975). In State v. Westlund, 13 Wash. App. 460, 536 P.2d 20, 77 A.L.R.3d 270, review denied, 85 Wash. 2d 1014 (1975), the confusion was furthered when, after stating the Rousseau rule as "one may resist an unlawful arrest by an amount of force reasonable and in proportion to the injury the arrestee faces," the Court of Appeals said, "the arrestee‘s right to freedom from arrest without excessive force that falls short of causing serious physical injury or death can be protected and vindicated through legal processes, whereas loss of life or serious physical injury cannot be repaired in the courtroom." Westlund, 13 Wash. App. at 465, 467. The latter statement apparently led the Court of Appeals in State v. Goree, 36 Wash. App. 205, 209, 673 P.2d 194 (1983), review denied, 101 Wash. 2d 1003 (1984), to say "the use of force to prevent even an unlawful arrest which threatens {*9} only a loss of freedom is not reasonable." Indeed, the status of Washington’s law on this subject was even confusing to courts in other jurisdictions. See Glover v. State, 88 Md. App. 393, 594 A.2d 1224, 1231 n.5 (1991) (listing Washington as one of the states to have abrogated the common law rule allowing resistance to unlawful arrests, and citing Westlund as authority).
*
Unfortunately, this court has not alleviated the confusion in this area. In State v. Hornaday, 105 Wash. 2d 120, 131, 713 P.2d 71 (1986), we said the following in the same paragraph: "A person illegally arrested by an officer may resist the arrest; the means used to resist an unlawful arrest must be reasonable and proportioned to the injury attempted upon the party sought to be arrested. ‘The use of force to prevent even an unlawful arrest which threatens only a loss of freedom is not reasonable.’" Hornaday, 105 Wash. 2d at 131 (quoting Goree, 36 Wash. App. at 209) (citations omitted). Because any arrest, lawful or unlawful, threatens at least a loss of freedom, the second sentence appears to be incompatible and inconsistent with the first.
*
In a similar vein, counsel for Valentine suggested at oral argument that our recent decision in State v. Mierz, 127 Wash. 2d 460, 476, 901 P.2d 286 (1995), overruled Rousseau sub silentio. In Mierz, a unanimous decision, we said, citing Hornaday: "An arrestee charged with assault upon a law enforcement officer must show that there was an imminent threat of serious physical harm in connection with an unlawful arrest in order to establish legitimate use of force in self-defense."5 Mierz, 127 Wash. 2d at 476.
*
As a result of this confusion in our law, we depart from our usual practice of not ruling on issues unless it is necessary to resolve a case, and proceed with reconsideration of the proposition we advanced in Rousseau, namely, that it is not unlawful to use reasonably proportioned force to resist any illegal arrest.
*
In Rousseau, a 1952 case, we recited the common law rule prevalent in most jurisdictions at the time: "It is the law that a person illegally arrested by an officer may resist that arrest, even to the extent of the taking of life if his own life or any great bodily harm is threatened." Rousseau, 40 Wash. 2d at 94 (citing John Bad Elk v. United States, 177 U.S. 529, 20 S. Ct. 729, 44 L. Ed. 874 (1900), and State v. Gum, 68 W. Va. 105, 69 S.E. 463 (1910)).
*
Gum, in turn, relied heavily on cases from Iowa, State v. Row, 81 Iowa 138, 46 N.W. 872 (1890); California, People v. Denby, 108 Cal. 54, 40 P. 1051 (1895); and Florida, Roberson v. State, 43 Fla. 156, 29 So. 535 (1901). Gum, in fact, quoted from the Florida case the language we adopted in {*10} Rousseau. Gum, 68 W. Va. at 112. Although the law regarding this issue has not changed in West Virginia since 1910, the West Virginia Supreme Court has had occasion to address it only once since then, nearly half a century ago in State v. McCauley, 130 W. Va. 401, 43 S.E.2d 454 (1947). By contrast, the law in the three states on which Gum most relied -- Iowa, California, and Florida -- has changed. It is now illegal in each of those states to resist even an unlawful arrest.6 Likewise, Rousseau also relied on State v. Robinson, 145 Me. 77, 72 A.2d 260 (1950), for the proposition that an illegal arrest is an assault and battery, thereby justifying the use force to resist. Rousseau, 40 Wash. 2d at 95. The Robinson court said "an illegal arrest is an assault and battery. The person so attempted to be restrained of his liberty has the same right, and only the same right, to use force in defending himself as he would have in repelling any other assault and battery." Robinson, 72 A.2d at 262. The Supreme Judicial Court of Maine set Robinson aside in 1978, however, holding "Robinson no longer states the law of Maine." State v. Austin, 381 A.2d 652, 653 (Me. 1978). Construing as a whole several sections of Maine‘s penal code, the court concluded, "The legislature has thus cast the advantage on the side of law enforcement officers, leaving the person arrested in most cases to pursue his rights, not through violent self-help, but through prompt hearing before a magistrate with prompt consideration for release on bail or personal recognizance." Austin, 381 A.2d at 655 (footnote omitted).
*
Thus, the theoretical footings on which we based {*11} our decision in Rousseau have eroded with the passage of time. It is therefore meet and fitting that we reconsider now the bases for our decision in Rousseau. Reconsidering cases such as Rousseau "enables the law under stare decisis to grow and change to meet the ever-changing needs of an ever-changing society and yet, at once, to preserve the very society which gives it shape." State ex rel. Washington State Fin. Comm. v. Martin, 62 Wash. 2d 645, 673, 384 P.2d 833 (1963).

[weishaupt1776]

1. Historical Background of the Common Law Rule. The English common law right forcibly to resist an illegal arrest was established almost three hundred years ago in The Queen v. Tooley, 92 Eng. Rep. 349, 351-52 (1909). The facts of Tooley are necessary for proper analysis, but, unfortunately, are rarely discussed in the cases.7 A statute enacted in the twenty-seventh year of the reign of Elizabeth I for the purpose of "reformation of disorders" allowed certain officials of London to "hear and punish incontinencies." Tooley, 92 Eng. Rep. at 349. One nonmedical meaning of incontinent is unchaste, or of unrestrained sexual appetite, or lewdness. Pursuant to a warrant issued in accordance with this statute, Constable Samuel Bray set about rounding up the "usual suspects" within the City of Westminster. Between 8 and 9 o’clock on the night of March 8, Constable Bray apprehended Mistress Anne Dekins "in the street between the play-house and the Rose Tavern." Tooley, 92 Eng. Rep. at 349. He suspected her of being a disorderly person, having previously arrested her for being disorderly. The trial court later disagreed with Bray, finding that he had no reason to arrest her, as she was not misbehaving at the time.
*
On the way to jail, three men, all strangers to Anne Dekins, drew their swords and attempted to rescue her from Constable Bray‘s custody. The case does not say what motivated these three strangers to attempt the rescue. {*12} The constable "shewed" them his constable’s staff, and declared himself to be on the Queen‘s business. They chose then to desist and Bray "carried the woman to the round-house[.]" Tooley, 92 Eng. Rep. at 350. An important point is that the three strangers did not see the unlawful arrest of Mistress Dekins; they saw her only under restraint as Bray led her to jail.
*
Shortly thereafter, with Mistress Dekins safely locked up, the same three men again assaulted Constable Bray outside the jail for the purpose of obtaining her release. Bray called for assistance, and Joseph Dent came to his aid. One of the three then killed Dent with a sword. The issue at trial was whether the three were guilty of murder or manslaughter. Under the law at the time, one who killed another without provocation was guilty of murder. If provocation were present, the crime was manslaughter. Thus, the question for the court was whether the arrest of Mistress Anne Dekins was sufficient provocation to the three strangers to excuse their actions and prevent a conviction for murder.
*
The case was argued on appeal "before all the Judges of England at Serjeant’s-Inn in Chancery-Lane," and resulted in a 7-5 verdict for manslaughter. Tooley, 92 Eng. Rep. at 352. Chief Justice Holt of the King‘s Bench delivered the decision of the court:
*
The prisoners [the accused] in this case had sufficient provocation; for if one be imprisoned upon an unlawful authority, it is a sufficient provocation to all people out of compassion;
*
much more where it is done under a colour of justice, and where the liberty of the subject is invaded, it is a provocation to all the subjects of England. . . . Constables have an authority by the statute to arrest persons, but that must be by warrant from the justices of the peace; but in this case there was no warrant. Tooley, 92 Eng. Rep. at 352. To the argument that the three strangers could not have been provoked because they were strangers to Mistress Dekins, the Chief Justice answered: "but sure a man ought to be concerned for {*13} Magna Charta and the laws; and if any one against the law imprisons a man, he is an offender against Magna Charta." Tooley, 92 Eng. Rep. at 353.
*
But how could three strangers who did not even witness the arrest know the arrest was unlawful? Chief Justice Holt rejoined, "but surely ignorantia facti will excuse, but never condemn a man. Indeed, he acts at his peril in such a case, but he must not lose his life for his ignorance." Tooley, 92 Eng. Rep. at 353. In other words, the three strangers acted at their peril -- had it been decided later that the arrest was in fact lawful, they would have been found guilty of murder. Because the court later determined the arrest to have been unlawful, the court held they had been properly provoked, and could be guilty only of manslaughter, not murder.
*
The important point to note is that Tooley is not about Mistress Anne Dekins’s right to resist her unlawful arrest. It is about the right of others, strangers, to resist her unlawful arrest. The "provocation" the Tooley court spoke of was not the provocation of Mistress Dekins. It was the provocation of the three strangers at seeing someone unlawfully imprisoned, and whether that provocation provided sufficient reason to reduce their conviction from murder to manslaughter. Nevertheless, the Tooley rule has come down to us as a rule permitting an arrestee to use the necessary force (but no more) to resist an unlawful arrest.8 To understand why an unlawful arrest was such a great provocation as to affect "all people out of compassion," it is necessary to look at the historical evidence of the state of English prisons in the eighteenth century.
*
{*14} 2. English Prisons. Professor Sam Bass Warner of Harvard Law School was instrumental in the 1940‘s in setting forth the historical background leading to the abandonment of the Tooley rule in the majority of states. "The [Tooley] rule developed when long imprisonment, often without the opportunity of bail, ’goal [sic] fever,‘ physical torture, and other great dangers were to be apprehended from arrest, whether legal or illegal." Sam B. Warner, The Uniform Arrest Act, 28 Va. L. Rev. 315, 330 (1942).
*
In an earlier article, Professor Warner described in more detail the horrors awaiting those arrested:
*
Since jailers were held responsible for escapes and many jails were constructed for some other purpose and hence easy to break out of, prisoners were often kept in irons. Those without the means to buy better accommodations were frequently huddled together in dark, filthy rooms, in close proximity to depravity and disease. Under such conditions, imprisonment until the next term of court was often equivalent to a death sentence, especially during the frequent periods when prisons were swept by a malignant form of typhus known as "gaol fever."9 In 1759 an English authority estimated that each year a fourth of the people in prison died there.10 Sam B. Warner, Investigating the Law of Arrest, 26 A.B.A. J. 151, 152 (1940). Others have also chronicled the deplorable conditions of English jails:
*