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Not a Crime to Photograph Undercover Police Officers:

So says a state prosecutor, dealing with an arrest for this non-crime. According to the Sarasota Herald-Tribune,

Randy Sievert did not commit a crime when he snapped a photo of an undercover Manatee County sheriff's vehicle from the road, a state prosecutor said this week in a case that has drawn national attention.

Deputies confronted Sievert in February and ordered him to erase any photos he took standing at the scene of a drug-related search warrant. Authorities called Sievert a "known" drug dealer whose photos jeopardized officer safety. Sievert, 20, was charged with interfering in a search warrant....

Sievert has been jailed without bail since his arrest; the obstruction charge violated his probation in two drug cases.

A person cannot be charged with obstruction or resisting arrest if the police detention is unlawful, an assistant state attorney, Tony Casoria, said in a memo released this week. Sievert did not physically interfere with the search warrant, the prosecutor said.

Casoria said Sievert "took a photograph in a public place, across the street from the home where law enforcement were conducting their search." ...

In declining to prosecute Sievert, the state pointed to a decision in a federal lawsuit in which a judge awarded a man damages for his arrest for videotaping police.... "The activities of the police, like those of other public officials, are subject to public scrutiny," [the judge in that case wrote]. "Robinson's right to free speech encompasses the right to receive information and ideas."

George Weiss (mail) (www):
is arresting someone for a non crime that you think is a crime beyond qualified immunity or not?
4.18.2008 2:29pm
some dude:
is arresting someone for a non crime that you think is a crime...

Ignorance of the law is no excuse, especially for someone who is supposed to know something of the law.
4.18.2008 2:40pm
Libertarian1 (mail):
As a non-attorney I have long believed that "justice" is best served when prosecutors drop cases when they believe the defendant is not guilty. It might not help them get media coverage and therefore help their career but it should be part of their job description. But too many of them want to be the next pre-exposure Elliot Spitzer. And convictions, even those coerced erroneously, can get the DA free publicity.

Next, it would be nice if defense attorneys similarly pursued justice and pled their guilty defendants guilty or just walked away. I tell my patients what I think is the best approach to treat their disease. if they choose to ignore my advice I tell them to find another physician.
4.18.2008 2:40pm
common sense (www):
Libertarian1: I think the best explanation for why defense attorneys don't automatically turn in guilty clients is because the costs (a guilty person will never talk to an attorney) are deemed to outweigh the benefits. Having the guilty party talk to an attorney is good as a general proposition, as the attorney can discuss pleading guilty with them, and also advise them as to future conduct. If there is going to be future crime, then the balancing changes, and the rules reflect that, for the most part. As far as walking away from a client, I think its pretty well accepted that the damage caused by an attorney leaving a client without good cause in the middle of a trial is far outweighed by the attorney's interests. That's not absolute either, but does tend to explain why attorneys don't just run when they find out their client is guilty.
4.18.2008 2:47pm
kiniyakki (mail):
Libertarian1,

I think a lot more prosecutors do this than you might think. Perhaps the bad examples (Nifong, etc.) get a lot of notoriety, but in prosecutors offices cases are frequently dismissed when the State realizes it can prove beyond a reasonable doubt, let alone dismissals when the State realizes the person is actually innocent (which is rare).

As to defense attorneys, their job is to represent their clients. Most defendants are actually guilty. If defense attorneys walked away from guilty clients, no defendant would have an attorney. Plus, a defense attorney often can point to aspects of a case others overlook, or be sure their clients concerns are addressed in sentencing (lots of time there are sentencing components that would be overlooked if a person just pled guilty).
4.18.2008 2:49pm
Soronel Haetir (mail):
As for the qualified immunity question, I imagine the police got what they wanted out of this. At least I imagine that the picture in question no longer exists.

Which bothers me even more, this poor sap spent time in jail for a non-crime and the materials of his effort are denied him.
4.18.2008 2:52pm
Student:
"Next, it would be nice if defense attorneys similarly pursued justice and pled their guilty defendants guilty or just walked away. I tell my patients what I think is the best approach to treat their disease. if they choose to ignore my advice I tell them to find another physician."

Even guilty defendants have rights, and the defense attorney's role in representing a guilty client is to protect those rights. If you think lawyers should walk away from guilty clients perhaps you ought to consider abandoning your terminally ill patients.
4.18.2008 2:59pm
HipposGoBerserk (mail):
Soronel,

Sorry, but I can't feel sorry for a drug dealer being denied access to a photo of an undercover cop. Wrong as many of our drug laws are, the criminal organizations that control the drug trade are a real threat to society.

HGB
4.18.2008 3:05pm
PersonFromPorlock:

Sorry, but I can't feel sorry for a drug dealer being denied access to a photo of an undercover cop.

Yeah, but it could have been anybody with a camera. You, me, your kid... and it could have been any subject the cops felt antsy about. Kathryn Johnston, for instance.
4.18.2008 3:22pm
EH (mail):
Hippos:
Sorry, but I can't feel sorry for a drug dealer being denied access to a photo of an undercover cop. Wrong as many of our drug laws are, the criminal organizations that control the drug trade are a real threat to society.


Only the cops say he's a "known" (note the quotes) drug dealer, but they also say it's illegal to photograph an undercover officer.

some dude:
Ignorance of the law is no excuse, especially for someone who is supposed to know something of the law.


Which is why I think that all (yes, all) offenses committed by officers should have "under color of authority" enhancements.
4.18.2008 3:26pm
Libertarian1 (mail):
Even guilty defendants have rights, and the defense attorney's role in representing a guilty client is to protect those rights. If you think lawyers should walk away from guilty clients perhaps you ought to consider abandoning your terminally ill patients.



Two possible approaches in reply.

(a) I am so good I don't have terminal patients.
or
(b) Why would I walk away from them if they are accepting my best advice? I suggested to the defense attorneys they should expect their advice to be followed.

The following may prove to be very controversial.

One of the frequent exchanges that I read here that truly bothers me is the frequency with which attorneys show great pride and even joy in getting their guilty clients off on technicalities. Esp. superior debating skills. Most of you are too close to understand this from an outside perspective. How would you feel if physicians had a chat line bragging about cheating insurance companies. And trust me getting the guilty off is cheating society. There it is only money but you are knowingly putting potentially dangerous criminals back on the street because you are smarter than the prosecutor and have enough experience so you know how to work the system.

You have set the rules about excluded evidence, right to unlimited appeals, Miranda etc etc all of which while ostensibly designed to assure a fair trial in reality are designed to thwart justice. I have had numerous defense attorneys as patients over the years and they assure me 90% of arrests are of guilty parties. Somehow getting them off doesn't seem right. I accept the burden should be on the prosecutor but a preponderance of evidence should be sufficient. Once again it is your rule that it is better for 10 guilty men etc etc. Why? It isn't my rule.
4.18.2008 3:50pm
ReaderY:
In a proper case I think this is the correct decision, but it's not clear to me Robinson was correctly decided. The troopers were not acting on their own but following an order of a Pennsylvania state judge arising from a prior conviction which Robinson had not appealed. The Federal judge simply said, without citing any authority, the Pennsylvania judge had no authority to order Robinson not to videotape police offers as part of his prior conviction judgment. It is by no means clear to me that this is true as a matter of Pennsylvania law. Robinson could have been sentenced to 90 days imprisonment; letting him go but ordering him not to videotape police officers could be construed as a kind of probation, many states let judges craft probation restrictions specific to a convict's situation, and many kinds of restrictions which cannot be imposed on ordinary citizens are perfectly acceptable as punishment for crime. Given that prison officials can unquestionably prohibit prisoners from even possessing video cameras, it is by no means clear to me that the First Amendment, under the cases applicable specifically in penal settings, categorically prohibits a state judge from prohibiting videotaping police officers as a condition of probation.

It seems to me that in order to get around looking at the First Amendment through a penal lens, Robinson had to attack his original conviction. Only by doing so was it legitimate for the district judge to treat Robinson as if he were an ordinary citizen facing an ordinary police action rather than a parole violater challenging a probation restriction. But as the judge noted in the first footnote, the statute of limitations for challenging the first arrest had run, and even if this were not the case, using a civil rights action as an end run to a challenge of a punishment imposed for a prior conviction runs squarely into Heck v. Humphrey. He needed to file for habeas corpus to do that, and even if the statute of limitations hadn't run since he never challenged his conviction he hadn't exhausted his remedy and if the time for appeal had expired the state would have an adequate and independent ground to bar habeas.

I don't think Robinson should have won this case. However, if he had filed a direct appeal of his original conviction it would have been a different matter.
4.18.2008 3:50pm
Soronel Haetir (mail):
Okay then, even assuming qualified immunity for this instance on the theory that there was insuffecient notice that the actions in question are not a crime, what of the next time?

What sort of claim would this guy have if he made a habit of taking pictures of search scenes and the police arrested him again?
4.18.2008 3:52pm
Kent G. Budge (mail) (www):
On the one hand, I have to agree with the decision. Police need to be subject to public scrutiny, and all that. The man should not have been arrested nor his pictures confiscated.

On the other hand, the man has two prior drug convictions. It is simply not true that "Only the cops say he's a "known" (note the quotes) drug dealer,..." I doubt that these particular photographs were taken out of civic virtue, and I find it entirely credible that the intent involved increased danger to the undercover cops involved.

If one of y'all can come up with a way to reconcile these two legitimate but seemingly irreconciliable concerns, let us all know.
4.18.2008 3:52pm
hattio1:
Libertarian1 says

Next, it would be nice if defense attorneys similarly pursued justice and pled their guilty defendants guilty or just walked away. I tell my patients what I think is the best approach to treat their disease. if they choose to ignore my advice I tell them to find another physician.


Not to pile on, but yes, people wouldn't necessarily tell defense attorney's anything as was pointed out by others above. Also, defense attorneys don't have special guilty goggles. Some people who look clearly guilty aren't. If no defense attorney was willing to take people who appeared to be guilty, a lot of innocent people would go unrepresented.

There's also the question of what they are guilty of. Overcharging is pandemic. By this I mean the defendant is likely guilty of 1 count of simple misdemeanor assault, but instead is charged with numerous felony assault counts, the better to insure that they will make at least one charge stick.

Finally, a lot of defense attorneys can't walk away if they want to. Public Defenders can't. Anyone who doesn't own/run their own office essentially takes the cases their boss decides to take. An associate who refuses to take any case where he believes the client is guilty will not be an associate very long.
4.18.2008 3:53pm
ReaderY:
It seems to me that it would be eminently reasonable and entirely constitutional, under the more restrictive First Amendment jurisprudence for penal settings, for states to impose a prohibition on videotaping police officers as a condition of probation or parole for certain types of crimes. Unlike in the Robinson case, however, such a condition was never imposed on Sievert in a prior conviction.
4.18.2008 3:56pm
pete (mail) (www):

Only the cops say he's a "known" (note the quotes) drug dealer, but they also say it's illegal to photograph an undercover officer.


The story says "Sievert has been jailed without bail since his arrest; the obstruction charge violated his probation in two drug cases." It also says he had $1,500 cash in pockets at the time of the arrest.

Perhaps he is only a convicted drug user as the story does not say what drug offeces they were, but the two previous convictions for drug offenses along with the fact that he was taking pictures of undercover drug cops and had $1,500 on him makes it look pretty likely that he is in fact a drug dealer.
4.18.2008 3:57pm
hattio1:
Libertarian1 says;

You have set the rules about excluded evidence, right to unlimited appeals, Miranda etc etc all of which while ostensibly designed to assure a fair trial in reality are designed to thwart justice.



Trust me, I DON'T set the rules. If I did they would actually do a lot more to ensure fair trials. Secondly, there is a cost to society of guilty people getting off. But, rarely, do I get a client off because my debating skills are superior. I get my clients off because law enforcement violated their rights. Law enforcement violating citizens rights has a societal cost too. You may respond that law enforcement violating criminals rights is not something you worry about. The problem is that no one, not the police, not the defense attorneys, not the prosecutors, and not the judges know who is guilty and who is not. Even if 90% are guilty, we have to have a way to separate out that 10%. And God help you if you are ever part of that 10%, because our "justice" system sure as hell isn't designed to help you. Also, if you are ever part of that 10%, hope like hell that no one who thinks like you is on the jury, because they can NEVER be convinced of innocence, and always put the burden on the defense, no matter what they say in voir dire.
4.18.2008 4:00pm
Carolina:

One of the frequent exchanges that I read here that truly bothers me is the frequency with which attorneys show great pride and even joy in getting their guilty clients off on technicalities. Esp. superior debating skills. Most of you are too close to understand this from an outside perspective. How would you feel if physicians had a chat line bragging about cheating insurance companies. And trust me getting the guilty off is cheating society. There it is only money but you are knowingly putting potentially dangerous criminals back on the street because you are smarter than the prosecutor and have enough experience so you know how to work the system.


1) I have never had a case where I *knew* my client was guilty. Criminals very rarely confess, even to their attorneys. I have had cases where I suspected they were guilty, but that is quite a different matter.

2) These procedural "technicalities" as you term them are there for a reason. They are there to prevent innocent people from being convicted. Even with the procedural safeguards we have, innocent people go to jail.

3) Yes, sometimes the procedural safeguards that are in place to protect the innocent sometimes allow the guilty to go free if there is insufficient evidence or the police/DA didn't properly do their job.

4) What is your alternative? Our system is an adversarial system tilted in favor of the prosecution, just not as tilted in favor of the prosecution as some judicial systems (e.g., Japan's). Your post seems to suggest there is some kind of better alternative out there -- can you enlighten us?

The whole tone of your post suggests that it is obvious to everyone involved in the justice system who is guilty and who is not, and it's just tricksy defense lawyers who are preventing the coming of Utopia. That just ain't the case. Very rarely does anyone but the accused know exactly what happened. All we can do is create a system that, as best as we are able to do, convicts most of the guilty and prevents convictions for most innocent people. If you can design a better system, by all means let us know how it can be done.
4.18.2008 4:05pm
SeaDrive:

Sorry, but I can't feel sorry for a drug dealer being denied access to a photo of an undercover cop.


As usual, it's not this case that's the issue, but the next one where someone takes Rodney King-type video of police beating someone up.
4.18.2008 4:10pm
ReaderY:
One of the purposes of Heck v. Humphrey was to ensure that challenges to convictions were confined to proper channels and police and penal officers aren't be subjected to money damages for merely enforcing facially valid court orders incident to criminal judgements. Police officers are entitled to take judicial orders at their word and leave the judging to judges. To punish police officers when they merely enforce judges' mistakes (or when one lower court merely disagrees with another) puts them in an untenable position and deeply undermines the comity and respect due judicial judgments. It seems to me that given the unchallenged and facially valid judicial order directing their behavior, liability should not have been imposed on the police officers whether the underlying order was correct or not.
4.18.2008 4:13pm
George Weiss (mail) (www):
soronel-

i was asking about qualified immunity not because i want to punish the officer/city-but because i want to compensate the victim

true the picture no longer exists-but you can give a guy a check for spending time in jail on a bogus charge if the police made an illegal arrest and are not immune
4.18.2008 4:22pm
Adam J:
Libertarian1- "You have set the rules about excluded evidence, right to unlimited appeals, Miranda etc etc all of which while ostensibly designed to assure a fair trial in reality are designed to thwart justice." Only the right to appeal has to do with fairness, the other rules aren't about fairness, they are about protecting all citizens' constitutional rights. If the police and prosecutors didn't have to worry about evidence being excluded, they'd have few incentives not to violate constitutional rights.

By the way, I tend to agree that the exclusionary rule is a poor solution to protecting constitutional rights, since criminals who's rights are violated get a windfall, while innocent people who's rights are violated get nadda, and meanwhile the police are only indirectly deterred. However, it's better than the alternative of no protection of ones constitutional rights.
4.18.2008 4:52pm
cirby (mail):
Heck, a few years ago, I was taking photos of a lineup of bicycle cops on New Year's Eve, and another police officer came over and told me I couldn't take pictures of police officers on duty.

"Uh, well, I really can."

"I can arrest you!"

"Well, no, you really can't. You might want to call in your watch sergeant or someone."

...and he did. Which got him a public dressing-down for being a complete moron who should never have been let out of the academy, and an apology from the sergeant for his "young idiot. We're going to see about getting him off of street duty..."
4.18.2008 4:59pm
George Weiss (mail) (www):
cirby:

its nice to hear that sometimes the system works the way its supposed to.
4.18.2008 5:56pm
edhesq (mail):
I would think that if you could prove pictures of an undercover officer were taken by someone with the intent to distribute those pictures to others in the furtherance of criminal activity, I think it could be a chargable crime.

Proving that intent would be the hard part, of course. If someone were found tailing undercover officers for the purpose of taking their picture, I think you could make that case.

That this guy took the picture incidental to the execution of a search warrant on his premises, I think it's hard to prove that intent.
4.18.2008 7:24pm
whit:
i have no problem with this decision. and as a disclaimer i have worked both loose undercover (buy/bust and narcotics stuff) and "deep undercover" (wherein my identity was hidden from all but a few officers in my own agency

the burden is on the COP to conceal his identity. simply put, WEAR A BALACLAVA. it's not difficult, and it protects your undercover identity.

if you are going to sit in a place accessible to the public at a search warrant in a cop car, you can be photographed. countersurveillance is real, and a hazard of the trade.

when i was deep undercover, i had to take great pains to conceal my identity. i never even went to the police station in almost 2 years. that's the way it goes.

bad guys surveil us and we surveil them. it's a two way street.
4.18.2008 7:41pm
David Schwartz (mail):
Adam J:
By the way, I tend to agree that the exclusionary rule is a poor solution to protecting constitutional rights, since criminals who's rights are violated get a windfall, while innocent people who's rights are violated get nadda, and meanwhile the police are only indirectly deterred.
Not being wrongly convicted with the help of the illegally-obtained evidence is "nadda"?
4.18.2008 8:06pm
JMHawkins (mail):
By the way, I tend to agree that the exclusionary rule is a poor solution to protecting constitutional rights, since criminals who's rights are violated get a windfall, while innocent people who's rights are violated get nadda, and meanwhile the police are only indirectly deterred. However, it's better than the alternative of no protection of ones constitutional rights.

No, that's not better than no protection. You said it yourself, only the guilty get any protection. How can something that only protects the rights of criminals but not the rights of innocents be a good idea?

What we need are penalties for officers who violate constitutional rights (of both the guilty and the innocent). Officers who knowingly, intentionally violate rights suffer severe penalties. Officers who make honest mistakes receives minor reprimands. Officers who make repeated honest mistakes are asked to find a new line of work. Why can't we have that system?
4.18.2008 8:22pm
JMHawkins (mail):
Not being wrongly convicted with the help of the illegally-obtained evidence is "nadda"?

If the person is really innocent, than you're not talking about illegally obtained evidence. You're talking about fabricated evidence. There's a huge difference between the two.
4.18.2008 8:24pm
cirby (mail):

I would think that if you could prove pictures of an undercover officer were taken by someone with the intent to distribute those pictures to others in the furtherance of criminal activity, I think it could be a chargable crime.


If someone outside of your chain of command knows you're an undercover police officer, you're not really UNDER COVER any more, are you? You just became a "former" undercover police officer.

If you're bringing current narcs to a hot crime scene, use a regular police car and put them in disguises or masks. Hauling them in while in their undercover identity is just plain stinking stupid.

If they want to charge someone for breaking cover, start with the supervisor who allowed them to show up there in the first place, and continue one with the officers themselves, who should have just said "no thanks" to showing up in public as what they were instead of what they pretend to be.
4.18.2008 8:47pm
edhesq (mail):
"If someone outside of your chain of command knows you're an undercover police officer, you're not really UNDER COVER any more, are you? You just became a "former" undercover police officer."

No, I disagree. My understanding is that undercover officers create multiple, sequential "covers" over time with different investigations, or simply work plain clothes when they don't need to develop a background.

Indeed, the covers and identities are sometimes revealed as needed on a limited basis when they make arrests and testify.

The idea is not to permit the compilation of a "mug-book" of undercover officers photos that can be easily circulated to identify the officers irrespective of the new cover they create or the new criminal they pursue.
4.18.2008 10:31pm
Joshua:
whit: the burden is on the COP to conceal his identity. simply put, WEAR A BALACLAVA. it's not difficult, and it protects your undercover identity.

Really? If all undercover cops started wearing balaclavas while under cover, wouldn't criminals eventually start becoming suspicious of anyone wearing a balaclava? Seems to me that would defeat the purpose of going undercover.
4.18.2008 11:05pm
whit:
"No, I disagree. My understanding is that undercover officers create multiple, sequential "covers" over time with different investigations, or simply work plain clothes when they don't need to develop a background. "

it depends. distinguish "deep undercover" (which very very very very few officers will ever do), with standard undercover buy bust type stuff.

the latter is something i had the opportunity to do. basically if you've seen donnie brasco, or rush you get the idea. in those cases, you establish a complete identity. i was even paid under a different name and had to contact the IRS to attach it to my social security number.

that applies to very very few undercovers.

the vast majority of undercovers are officers working in plainclothes units that routinely conceal their identity as cops during surveillance or meeting with informants and will often engage in stings such as buy-bust etc.

their 'legend' (undercover identity) is often supported by no more than a fake id and an intro. and maybe even some track marks (you can make pretty sweet track marks with a syringe and some saline if you do it enough).

the vast majority of this type of work is done by informants, or as they are more politically correctly referred to as "confidential witnesses" whether transactional (testifying) or not (used to develop PC for a warrant).

"Indeed, the covers and identities are sometimes revealed as needed on a limited basis when they make arrests and testify. "

yes. in the case of a deep undercover, it will remain confidential for the entire investigation (mine lasted a long time) and then it's a slew of grand jury testimony on cases months or years old.

"The idea is not to permit the compilation of a "mug-book" of undercover officers photos that can be easily circulated to identify the officers irrespective of the new cover they create or the new criminal they pursue."

except what authority PREVENTS such a compilation? seriously.

i am certainly of the belief that cops can and should make efforts to keep this information secret, but by what authority can law enforcement agencies prevent the circulation of this information? there is no law in my state that prevents it. IF such a thing is necessary than legislatures need to pass a law outlawing such compilations, and see if it passes constitutional scrutiny. but absent such a law, the "idea" of preventing people from doing this may be a nice IDEA but under what authority do cops have the right to prohibit the dissemination of this information? imo, none.
4.18.2008 11:06pm
whit:
"Really? If all undercover cops started wearing balaclavas while under cover, wouldn't criminals eventually start becoming suspicious of anyone wearing a balaclava? Seems to me that would defeat the purpose of going undercover"

ok. golf clap. that was pretty funny ! :)
fwiw, one of the funniest things when i was (deep) undercover was hanging out with hardcore druggies and hearing them tell me how to tell if somebody was an undercover cop or DEA agent. it was actually fascinating. some of the stuff was actually quite perceptive. cops have a certain way of walking, talking, standing, dressing , etc. others were hilariously inaccurate.
4.18.2008 11:10pm
whit:
edit: should be "the former AND the latter", but the donnie brasco example refers to the former which is what i did for a long time.
4.18.2008 11:12pm
Alec:
Interesting. I think someone's "uncovered" a way to punish the drug warriors and slow down their machinery.

While I find it morally problematic if it puts the officer's life in danger, I also have to admit that it would be an ironically Darwinian development if this lit up and opponents of the drug war (or just drug users themselves) started collecting these photographs and posted them online in a massive database. Who says we can't learn something valuable from the sex offender registries?

Of course, I have the feeling that proponents of drug laws and sex offender registries would condemn such an effort as promoting vigilante efforts and cop killings. A shame they cannot see the irony.
4.18.2008 11:34pm
Robert R.:
"A person cannot be charged with obstruction or resisting arrest if the police detention is unlawful,"


They can in Colorado:


18-8-103. Resisting arrest.

...

(2) It is no defense to a prosecution under this section that the peace officer was attempting to make an arrest which in fact was unlawful, if he was acting under color of his official authority, and in attempting to make the arrest he was not resorting to unreasonable or excessive force giving rise to the right of self-defense.



18-8-104. Obstructing a peace officer, firefighter, emergency medical services provider, rescue specialist, or volunteer.

...

(2) It is no defense to a prosecution under this section that the peace officer was acting in an illegal manner, if he was acting under color of his official authority as defined in section 18-8-103
4.19.2008 1:01am
Robert R.:
the burden is on the COP to conceal his identity. simply put, WEAR A BALACLAVA. it's not difficult, and it protects your undercover identity.


Or do what Superman does, and wear glasses when out-of-uniform.
4.19.2008 1:04am
Mars vs Hollywood:
I dunno about the balaclava thing. Something about cops in masks gives certain libertarians the screaming meemees. :)
<blockquote>
but absent such a law, the "idea" of preventing people from doing this may be a nice IDEA but under what authority do cops have the right to prohibit the dissemination of this information? imo, none.
</blockquote>
If the police can make the case that keeping such information secret is vital to law enforcement operations (to say nothing of the safety of officers themselves), then wouldn't Obstruction of Justice or Hindering Law Enforcement type charges be applicable?
4.19.2008 5:06am
Mars vs Hollywood:
Hmm, I may be charged with Hindering Blockquotes...
4.19.2008 5:08am
M. Simon (mail) (www):
I think a lot more prosecutors do this than you might think except in drug cases.

Fixed.
4.19.2008 7:43am
M. Simon (mail) (www):
the burden is on the COP to conceal his identity. simply put, WEAR A BALACLAVA

In America we do not believe in secret police. We prefer them to be undercover.
4.19.2008 7:46am
M. Simon (mail) (www):
This thread is fascinating re: how the drug war has spawned a whole industry of secret police. Informants. etc.

I 'm part of the post WW2 generation and watched a lot of WW2 movies. Such behavior (secret police, no-knock warrants executed by battering down doors at 3 AM, networks of informants) on the part of Germans was considered reprehensible. Good thing we are not Germans or people might get the wrong idea.
4.19.2008 7:54am
M. Simon (mail) (www):
One of the frequent exchanges that I read here that truly bothers me is the frequency with which attorneys show great pride and even joy in getting their guilty clients off on technicalities.

Those technicalities protect the innocent. Once you waive them for the guilty no one is safe.
4.19.2008 8:02am
Brett Bellmore:

What we need are penalties for officers who violate constitutional rights (of both the guilty and the innocent). Officers who knowingly, intentionally violate rights suffer severe penalties. Officers who make honest mistakes receives minor reprimands. Officers who make repeated honest mistakes are asked to find a new line of work. Why can't we have that system?


We could have such a system, but it would have to be implemented by the legislature. The exclusionary rule was implemented by the judiciary, which can't create such a system of penalties, in response the the legislature's failure to create any system to implement protection against these violations.


8-8-103. Resisting arrest.

...

(2) It is no defense to a prosecution under this section that the peace officer was attempting to make an arrest which in fact was unlawful, if he was acting under color of his official authority, and in attempting to make the arrest he was not resorting to unreasonable or excessive force giving rise to the right of self-defense.


Wait, that can't be! Oren assures us that there isn't, and can't possibly be, any right of self-defense against police. It's a violation of Webber's definition of the state, which trumps all statutes and constitutional provisions.
4.19.2008 9:23am
Robert R.:
Such behavior (secret police, no-knock warrants executed by battering down doors at 3 AM, networks of informants) on the part of Germans was considered reprehensible.


I don't know about the Germans, but at least the Soviet secret police knocked (unlike American militarized police).

And everything which is by now comprised in the traditional, even literary, image of an arrest will pile up and take shape, not in your own disordered memory, but in what your family and your neighbors in your apartment remember: The sharp nighttime ring or the rude knock at the door. The insolent entrance of the unwiped jackboots of the unsleeping State Security operatives. The frightened and cowed civilian witness at their backs.


-Aleksandr I. Solzhenitsyn
The Gulag Archipelago
4.19.2008 9:45am
whit:
"If the police can make the case that keeping such information secret is vital to law enforcement operations (to say nothing of the safety of officers themselves), then wouldn't Obstruction of Justice or Hindering Law Enforcement type charges be applicable?"

then the police should make that case to the LEGISLATURE, and the legislature should pass a specific law that criminalizes said behavior, and see if it passes constitutional scrutiny

i'm fine with that, and as a former undercover, i am well aware of the risks. but there is this thing called rule of law. just because a behavior is bad (taking photos of undercover officers and disseminating it to others) does not mean police can make up the law as they go along.

"In America we do not believe in secret police. We prefer them to be undercover"

undercover operations are not like the "secret police". during my time undercover, i had to write reports. these reports were, once the cases were charged OPEN TO THE PUBLIC FOR ANYBODY TO READ.

it is a bogus analogy to compare the two.

during the investigative phase certain things are kept secret, but that is a temporary situation to inflitrate druggie operations.

fwiw, i am totally against the war on drugs anyways, but if you are going to prosecute the war, undercover op's are a good way to do it.
4.19.2008 2:24pm
markm (mail):
David Schwartz: Not being wrongly convicted with the help of the illegally-obtained evidence is "nadda"?

If you're innocent, then the illegal search won't find anything - but you've still had your house or car torn apart, often also with all the trauma of armed men breaking in in the middle of the night, manhandling you and your family, and shooting your dog. And the exclusionary rule doesn't do diddly-squat about that.

How about trading the exclusionary rule for strict liability for police departments for any unproductive search or detention? Plus (to discourage planting evidence, among other things) a rule that all police activities be recorded as thoroughly as possible, with the tapes available to all interested parties.
4.20.2008 1:35am
Brett Bellmore:
An excellent idea; I've long thought that the greatest failing of the legal system in the US was that, even as no effort is spared to bring the guilty to justice, not a finger is lifted to make whole those who get sucked into the legal system, and found innocent.

They'll casually consume your life for months, making earning a living impossible, consume your savings to pay for a legal defense, and then when you're determined by that jury to be innocent, you won't even get an apology, let alone any help putting your life back together. Just being put through the legal wringer is a worse punishment than many crimes nominally entail, and it's levied against you before any conviction, and not undone in the event of aquittal.
4.20.2008 9:20am
Mary Katherine Day-Petrano (mail):
A great ruling -- at least now when CIs are used to launch a malicious attack on an autistic person's equine disability service horse, intended to leave the service animal with about a 20% chance to live and permanent maiming injuries for life, it will be CLEAR who to sue ...
4.20.2008 4:00pm
whit:
"How about trading the exclusionary rule for strict liability for police departments for any unproductive search or detention? "

that's absurd. searches (search warrants) aren't based on the absolute certainty that X will be present at the location. they are based on probable cause.

so, you are proposing that if nothing is found (cause it was used, disposed of, etc. etc. etc.) that the police are found liable for the search?

in GENERAL, results based analysis is not how the law works or should. it's process based. if the PROCESS was fair (iow, they followed the rules, did the right thing in regards to the rules, acted in good faith etc. - then there should be no liability).

if you seek a results based system, that is fraught with problems, it strongly encourages corruption, and is inconsistent with how the way the law simply WORKS in this country.

we could go england's route, which doesn't automatically exclude evidence but allows a judge some discretion.

the govt. should follow the rules. enforcing a results based standard would do nothing to help ensure that, and would actually make it less likely.

it also would mean a lot of valid searches wouldn't be done. why risk the liability? just let the crime occur. generally speaking, you can't sue police for INACTION (with some exceptions where a relationship is established etc.) , so the result would be "i have PC to search but if i don't find anything i can get sued, so screw it".

and the murderer, rapist, whatever is not prosecuted.
4.20.2008 8:27pm
whit:
"They'll casually consume your life for months, making earning a living impossible, consume your savings to pay for a legal defense, and then when you're determined by that jury to be innocent, you won't even get an apology"

juries don't determine that people are innocent. that is neither their duty, nor their authority.

in some cases, people who were indicted and/or tried are completely exonerated (see: duke rape case), but it isn't done by a jury.

how can somebody in a legal blog believe that juries determine people to be "innocent?"

of course, many people found not guilty ARE in fact, innocent (as are some who are found guilty), but it's not determined by the jury.

your not (nor should you) get an apology from the prosecution if a jury finds you NOT GUILTY, because a not guilty verdict doesn't mean the prosecutor screwed up by prosecuting, if don't mean that you are in fact innocent, etc. those MAY be the case, but the jury verdict doesn't mean the prosecution screwed up. it means the trier of fact weighed the prosecution and defense case, and found the evidence lacking to believe that the party was guilty.

that is hardly the same thing as declaring innocence.
4.20.2008 8:32pm
Peter Wimsey:
Libertarian1 writes:

You have set the rules about excluded evidence, right to unlimited appeals, Miranda etc etc all of which while ostensibly designed to assure a fair trial in reality are designed to thwart justice. [snip]Once again it is your rule that it is better for 10 guilty men etc etc. Why? It isn't my rule.


It's kind of a common misunderstanding that our constitutional protections were set up to assure a fair trial. They weren't. They were set up to protect the rights of the accused. The framers didn't really trust government power and consequently sought to limit it.

Western European systems (excl. Britain) do take a less adversarial approach; when I studied law in Germany the professors tended to believe that the US system was the best system for an individual who was guilty, but not as good for individuals who were innocent. Unfortunately, I think that is probably correct.
4.20.2008 10:03pm
iowan (mail):
whit; you are sooo wrong. I am presumed innocent. when charged with a crime and prosecuters fail to get a conviction, I still carry that presumption of innocence, hence found to STILL be innocent
4.21.2008 1:21pm
whit:
"whit; you are sooo wrong. I am presumed innocent. when charged with a crime and prosecuters fail to get a conviction, I still carry that presumption of innocence, hence found to STILL be innocent"

rubbish. the court system presumes you to be innocent. a presumption is not a DETERMINATION. there is a significant difference.

when a jury finds you not guilty, you are still PRESUMED innocent.

it does not follow that they DETERMINED you to be innocent.

again, there is a massive difference.

fwiw, if you blow over a .08 on the BAC in my state, you are PRESUMED impaired. it does not follow that you have been DETERMINED to be impaired.

you said "when they determine you to be innocent".

sorry. bzzzzzzt. juries can't and don't do this.

as a counterexample, see the duke case.
4.21.2008 2:27pm
bob (www):
It's a good thing the prosecutor decided there wasn't a crime here. Otherwise, the accused might have had to spend a couple months in jail.
4.21.2008 8:35pm
hattio1:
Whit says;

your not (nor should you) get an apology from the prosecution if a jury finds you NOT GUILTY, because a not guilty verdict doesn't mean the prosecutor screwed up by prosecuting, if don't mean that you are in fact innocent, etc. those MAY be the case, but the jury verdict doesn't mean the prosecution screwed up. it means the trier of fact weighed the prosecution and defense case, and found the evidence lacking to believe that the party was guilty.



I agree with you here. But, the original poster you were responding to is also right in a sense. The process of going through trial can rip apart your life.

To paraphrase the old saying about democracy, we have a terrible, awful criminal justice system, and the only thing to recommend it is that it's better than anything else out there.
4.21.2008 9:32pm
whit:
"I agree with you here. But, the original poster you were responding to is also right in a sense. The process of going through trial can rip apart your life. "

i totally agree. heck, a mere physical arrest can be pretty harrowing. i often HAVE to make custodial arrests and bookings, for example, in DV cases which mandate arrest even with he said/she said cases where the physical evidence is weak to nonexistent. i am painfully aware that many people arrested are in fact innocent. that sux.

i'd LIKE the criminal justice system to be a little more concerned with finding out truth vs. the games it plays, but i do agree it's pretty frigging good compared to those i have studied in other countries.
4.22.2008 3:35am