A GOOD CASE TO KNOW ABOUT
By Lt. John Garrido
On 2 Nov 08, 25th District officers arrested 2 offenders for drinking on the public way. A custodial search incident to the arrest revealed the offenders to be in possession of fictitious SS cards and fictitious green cards. When Detective Sofrenovic sought the appropriate felony charge, ASA Essig rejected charges, citing "Prosecutorial Discretion"
and "4th Amendment issues" in regard to the arrest.
Being the W/C that day, I contacted her supervisor, ASA Grawth. Aside from the b.s. discretion nonsense, I was more concerned about the 4th Amendment argument. He alleged that when officers make a physical arrest for a charge that is less than a misdemeanor (like drinking on the public way or a traffic citation) and it leads to another charge due to the search, they are actually violating the offender's constitutional rights under the 4th amendment. Believing he was wrong, I went for the over-ride; thank you Commander Welch.
I did a little research and confirmed that not only is he wrong, but there is a recent United States Supreme Court case to support the argument that there is no 4th Amendment Violation; the case couldn't be more on point and it was decided on April 23, 2008. FINDLAW.Com
Thanks Lt.
14 comments:
Is it true you don't need to have your star to carry a weapon? Just an ID?
GOOD JOB J.G.
Nice job Johnny. You must take after your mother---
Signed:
One of your dad's old co-horts.
Yes. You only need your I.D.
Good Job John. Unfortunately you know from being in the D-unit how the States Attorney deals with Override Cases. They take it as an insult that the Police DARED to overwrite them then they have the case taken care of in court. Been there, seen it done.
These jagoffs are on our side ? I don't think so. They are not our friends . I don't know this guy but you can bet he is a Friggin' moron .
Lt. John Garrido makes me moist!
Jeez, Sarge....a whole lot has happened with the CPD since this last thread...anyt updates coming from you? Hello? zzzzzzz
Happy Thanksgiving Sergeant, and to all our thin blue line family. be safe and many blessings
There's an ASA supervisor that I thought was Dan Groff. Maybe same guy and the name was just told to me by someone speech impaired. Anyway, Dan is an awesome guy. Total friend of the police. Very right thinking State's Att. Great trial lawyer, etc. If this is the same guy, I'm real surprised by the incident. I hate to question you, Lt., especially since you're standing up for our guys and for what's right, but could there possibly be more to the story? I really don't mean to offend, but as I said, if this is the same guy that I know/used to know, I'd be shocked!
I have known ASA Groth for many years, I will ask him his side of the story, as their are two sides to every one. He is the best. His father was a CPD Sgt. who was one of the supervisors on the Black Panther raid. Pull out your history book kids. Read about a great man, and Dan Groth has followed in his dad's footsteps as he is another great man.
Hate to burst your bubble but that case isn't really on point. It has long been settled that Illinois does not have a law prohibiting a full-blown arrest for fine only offenses. The U.S. Supreme Court case cited only applies to states that prohibit arrests for certain minor offenses. The ASA is still incorrect though.
Sorry for the long response post:
To: "Hate to burst your bubble but that case isn't really on point."
I should have learned my lesson by now as to how futile it is to discuss any topic with "anonymous", but I now know who this person is:
I guess my word choice of "being on point" may not have been the best. But if you read the case, and I doubt you did, you would clearly see that a recent U.S. Supreme Court case repeatedly reminds us of their position on the Fourth Amendment as it relates to searches incident to arrests; minor or otherwise.
Ie. “We reaffirm against a novel challenge what we have signaled for more than half a century. When officers have probable cause to believe that a person has committed a crime in their presence, the Fourth Amendment permits them to make an arrest, and to search the suspect in order to safeguard evidence and ensure their own safety.”
"[i]f an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender."
You are correct that it has long been settled, blah blah blah, but that was never the argument. I’m actually still unclear as to what the asa’s “4th Amendment issue” is.
You are also correct that this case is about states that prohibit arrests for certain minor offenses.
But the Supreme Court goes out of their way in this case to remind Virginia that not only are they wrong as it pertains to their state law, but any state would be wrong to think there is an issue even without a state law.
I’ve provided some more examples of why this particular case is a good case to know about, because like I said, it’s clear you didn’t read the case.
Instead you prefer to ask others smarter than you, then attempt to sound smart on a blog by using their words.
I know who you are and where you got your argument; I’ll remember.
Feel free to contact me in person if you wish to discuss this issue further.
John Garrido
From the case:
In a long line of cases, we have said that when an officer has probable cause to believe a person committed even a minor crime in his presence, the balancing of private and public interests is not in doubt. The arrest is constitutionally reasonable.
“We have recognized, however, that officers may perform searches incident to constitutionally permissible arrests in order to ensure their safety and safeguard evidence.
We have described this rule as covering any "lawful arrest," with constitutional law as the reference point.
That is to say, we have equated a lawful arrest with an arrest based on probable cause: "A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification." Ibid.
"[W]hether or not a search is reasonable within the meaning of the Fourth Amendment," we said, has never "depend[ed] on the law of the particular State in which the search occurs." While "[i]ndividual States may surely construe their own constitutions as imposing more stringent constraints on police conduct than does the Federal Constitution," ibid., state law did not alter the content of the Fourth Amendment.
We thought it obvious that the Fourth Amendment's meaning did not change with local law enforcement practices—even practices set by rule. While those practices "vary from place to place and from time to time," Fourth Amendment protections are not "so variable" and cannot "be made to turn upon such trivialities."
We conclude that warrantless arrests for crimes committed in the presence of an arresting officer are reasonable under the Constitution, and that while States are free to regulate such arrests however they desire, state restrictions do not alter the Fourth Amendment's protections.
The Court adheres to this approach because an arrest based on probable cause serves interests that justify seizure. Arrest ensures that a suspect appears to answer charges and does not continue a crime, and it safeguards evidence and enables officers to conduct an in-custody investigation.
We are convinced that the approach of our prior cases is correct, because an arrest based on probable cause serves interests that have long been seen as sufficient to justify the seizure. Arrest ensures that a suspect appears to answer charges and does not continue a crime, and it safeguards evidence and enables officers to conduct an in-custody investigation. See W. LaFave, Arrest: The Decision to Take a Suspect into Custody (1965).
The interests justifying search are present whenever an officer makes an arrest. A search enables officers to safeguard evidence, and, most critically, to ensure their safety during "the extended exposure which follows the taking of a suspect into custody and transporting him to the police station.”
It has long been settled that Illinois does not have a law prohibiting a full-blown arrest for fine only offenses.
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Drinking on the Public Way is not a fine only arrest.
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