PUBLIC OFFENSES & DUE PROCESS, Part 3
- It appears to me that most people are proceeding according to DOGMA and are RATIONALIZING things because they are UNABLE to SUBSTANTIATE what they BELIEVE in LAW.They believe that the POLICE can STOP & CITE you for anything, yet they can't seem to produce any real EVIDENCE to show HOW & WHY, despite all of the EVIDENCE to the CONTRARY."His rights are such as existed by the law of the land long antecedent to the organization of the state, and can only be taken from him by due process of law, and in accordance with the Constitution. Among his rights are a refusal to incriminate himself, and the immunity of himself and his property from arrest or seizure except under a warrant of the law. He owes nothing to the public so long as he does not trespass upon their rights." HALE v. HENKEL, 201 U.S. 43 (1906)Remember the STATE can PUNISH for CRIME.GC 201. The State may punish for crime.PC 12. The several sections of this Code which declare certain crimes to be punishable as therein mentioned, devolve a duty upon the Court authorized to pass sentence, to determine and impose the punishment prescribed.
PC 13. Whenever in this Code the punishment for a crime is left undetermined between certain limits, the punishment to be inflicted in a particular case must be determined by the Court authorized to pass sentence, within such limits as may be prescribed by this Code.PC 145. Every public officer or other person, having arrested any person upon a criminal charge, who willfully delays to take such person before a magistrate having jurisdiction, to take his examination, is guilty of a misdemeanor.PC 683. The proceeding by which a party charged with a public offense is accused and brought to trial and punishment, is known as a criminal action.PC 684. A criminal action is prosecuted in the name of the people of the State of California, as a party, against the person charged with the offense.PC 948. All the forms of pleading in criminal actions, and the rules by which the sufficiency of pleadings is to be determined, are those prescribed by this Code.
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=948-973The simple FACT is that INFRACTIONS are NOT CRIMES and are NOT CRIMINAL in nature."Further, infractions are not crimes and the rule forbidding successive prosecutions of a defendant is not applicable when an infraction is one of the offenses involved. (People v. Battle (1975) 50 Cal.App.3d Supp. 1 [123 Cal.Rptr. 636].) fn. 1 [1b] Proceedings on infractions are not attended by the same constitutional safeguards as those attending felony or misdemeanor prosecutions. The limitation on an accused's right to jury trial of infractions has withstood constitutional attack upon the rationale the Legislature did not intend to classify infractions as crimes. (See People v. Oppenheimer (1974) 42 Cal.App.3d Supp. 4 [116 Cal.Rptr. 795] and People v. Battle, supra, 50 Cal.App.3d Supp. 1.)" People v. Sava (1987) 190 Cal.App.3d 935 , 235 Cal.Rptr. 694But PUBLIC OFFENSES are.A "public offense" is synonymous with "a crime" and a crime includes both felonies and misdemeanors. Burks v. U.S., C.A.9 (Cal.)1961, 287 F.2d 117, certiorari denied 82 S.Ct. 868, 369 U.S. 841, 7 L.Ed.2d 846, rehearing denied 82S.Ct. 1143, 369 U.S. 882, 8 L.Ed.2d 284.The FACT is that the police had to first STOP, DETAIN, SEIZE and ARREST you in order to TICKET you and there are only LIMITED "circumstances in which a peace officer may effect a custodial arrest for minor offenses.""The second preliminary matter we must consider is the precise point in time at which a traffic violator is "arrested."  A police officer may legally stop a motorist to conduct a brief investigation when he entertains a rational suspicion, based on specific facts, that a violation of the Vehicle Code or other law may have taken place (see People v. Griffith (1971) supra, 19 Cal.App.3d 948, 950-951, and cases cited), and the temporary restraint of the suspect's movements incident to that investigation will not ordinarily be deemed an arrest. But when the officer determines there is probable cause to believe that an offense has been committed and begins the process of citing the violator to appear in court (Veh. Code, §§ 40500-40504), an "arrest" takes place at least in the technical sense: "The detention which results [during the citation process] is ordinarily brief, and the conditions of restraint are minimal. Nevertheless the violator is, during the period immediately preceding his execution of the promise to appear, under arrest. [Citations.] Some courts have been reluctant to use the term 'arrest' to describe the status of the traffic violator on the public street waiting for the officer to write out the citation [citations]. The Vehicle Code, however, refers to the person awaiting citation as 'the arrested person.' Viewing the situation functionally, the violator is being detained against his will by a police officer, for the purpose of obtaining his appearance in connection with a forthcoming prosecution. The violator is not free to depart until he has satisfactorily identified himself and has signed the written promise to appear." (Fns. omitted.) (People v. Hubbard (1970) 9 Cal.App.3d 827, 833 [88 Cal.Rptr. 411].)" People v. Superior Court (Simon) , 7 Cal.3d 186 (1972)
http://login.findlaw.com/scripts/callaw?dest=ca/cal3d/7/186.html"California has, in various statutes, limited the circumstances in which a peace officer may effect a custodial arrest for minor offenses. (E.g., Pen. Code, §§ 818, 827.1, 853.5, 853.6; Pub. Resources Code, § 5786.17; Veh. Code, §§ 40302, 40302.5, 40303, 40303.5, 40304, 40305, 40305.5.)...Our state law authorizes custodial arrests for violations of the Vehicle Code, but not in all circumstances. If the violation is declared to be a felony, the offender is to be dealt with in like manner "as upon arrest for the commission of any other felony." (Veh. Code, § 40301; see Pen. Code, § 836.) For certain enumerated nonfelony offenses, the officer has the discretion to take the offender to "the nearest or most accessible" magistrate with jurisdiction over the offense or to issue a citation and, upon the offender's signature of a promise to appear, release the offender. (§§ 40303, [27 Cal.4th 620] 40304.) For the remaining offenses (except driving under the influence), the officer must follow the cite-and-release procedure, unless the offender fails to present a driver's license or other satisfactory evidence of identity for examination, refuses to give a written promise to appear in court, or demands an immediate appearance before a magistrate, in which case the officer must take the offender to the magistrate. (§ 40302; People v. Superior Court (Simon) (1972) 7 Cal.3d 186, 199-200 [101 Cal.Rptr. 837, 496 P.2d 1205].) The Legislature thus "in effect presumes that in the vast majority of cases the violator will not be taken into custody." (Simon, supra, at p. 199.)" People v. McKay (2002) 27 Cal.4th 601 , 117 Cal.Rptr.2d 236; 41 P.3d 59http://login.findlaw.com/scripts/callaw?dest=ca/cal4th/27/601.htmlSo what are those LIMITED "circumstances" the court CITED?PC 818. In any case in which a peace officer serves upon a person a warrant of arrest for a misdemeanor offense under the Vehicle Code or under any local ordinance relating to stopping, standing, parking, or operation of a motor vehicle and where no written promise to appear has been filed and the warrant states on its face that a citation may be used in lieu of physical arrest, the peace officer may, instead of taking the person before a magistrate, prepare a notice to appear and release the person on his promise to appear, as prescribed by Sections 853.6 through 853.8 of the Penal Code. Issuance of a notice to appear and securing of a promise to appear shall be deemed a compliance with the directions of the warrant, and the peace officer issuing such notice to appear and obtaining such promise to appear shall endorse on the warrant "Section 818, Penal Code, complied with" and return the warrant to the magistrate who issued it.PC 827.1. A person who is specified or designated in a warrant of arrest for a misdemeanor offense may be released upon the issuance of a citation, in lieu of physical arrest, unless one of the following conditions exists:
(a) The misdemeanor cited in the warrant involves violence.
(b) The misdemeanor cited in the warrant involves a firearm.
(c) The misdemeanor cited in the warrant involves resisting arrest.
(d) The misdemeanor cited in the warrant involves giving false information to a peace officer.
(e) The person arrested is a danger to himself or herself or others due to intoxication or being under the influence of drugs or narcotics.
(f) The person requires medical examination or medical care or was otherwise unable to care for his or her own safety.
(g) The person has other ineligible charges pending against him or her.
(h) There is reasonable likelihood that the offense or offenses would continue or resume, or that the safety of persons or property would be immediately endangered by the release of the person.
(i) The person refuses to sign the notice to appear.
(j) The person cannot provide satisfactory evidence of personal identification.
(k) The warrant of arrest indicates that the person is not eligible to be released on a citation.
The issuance of a citation under this section shall be undertaken in the manner set forth in Sections 853.6 to 853.8, inclusive.PC 853.5. (a) Except as otherwise provided by law, in any case in which a person is arrested for an offense declared to be an infraction, the person may be released according to the procedures set forth by this chapter for the release of persons arrested for an offense declared to be a misdemeanor. In all cases, except as specified in Sections 40302, 40303, 40305, and 40305.5 of the Vehicle Code, in which a person is arrested for an infraction, a peace officer shall only require the arrestee to present his or her driver's license or other satisfactory evidence of his or her identity for examination and to sign a written promise to appear contained in a notice to appear. If the arrestee does not have a driver's license or other satisfactory evidence of identity in his or her possession, the officer may require the arrestee to place a right thumbprint, or a left thumbprint or fingerprint if the person has a missing or disfigured right thumb, on the notice to appear. Except for law enforcement purposes relating to the identity of the arrestee, no person or entity may sell, give away, allow the distribution of, include in a database, or create a database with, this print. Only if the arrestee refuses to sign a written promise, has no satisfactory identification, or refuses to provide a thumbprint or fingerprint may the arrestee be taken into custody. (rest omitted)PC 853.6. (a) In any case in which a person is arrested for an offense declared to be a misdemeanor, including a violation of any city or county ordinance, and does not demand to be taken before a magistrate, that person shall, instead of being taken before a magistrate, be released according to the procedures set forth by this chapter. If the person is released, the officer or his or her superior shall prepare in duplicate a written notice to appear in court, containing the name and address of the person, the offense charged, and the time when, and place where, the person shall appear in court. If, pursuant to subdivision (i), the person is not released prior to being booked and the officer in charge of the booking or his or her superior determines that the person should be released, the officer or his or her superior shall prepare a written notice to appear in a court.
Nothing in this subdivision shall be construed to affect a defendant's ability to be released on bail or on his or her own recognizance.
(b) Unless waived by the person, the time specified in the notice to appear shall be at least 10 days after arrest if the duplicate notice is to be filed by the officer with the magistrate.
(c) The place specified in the notice shall be the court of the magistrate before whom the person would be taken if the requirement of taking an arrested person before a magistrate were complied with, or shall be an officer authorized by that court to receive a deposit of bail.
(d) The officer shall deliver one copy of the notice to appear to the arrested person, and the arrested person, in order to secure release, shall give his or her written promise to appear in court as specified in the notice by signing the duplicate notice which shall be retained by the officer, and the officer may require the arrested person, if he or she has no satisfactory identification, to place a right thumbprint, or a left thumbprint or fingerprint if the person has a missing or disfigured right thumb, on the notice to appear. Except for law enforcement purposes relating to the identity of the arrestee, no person or entity may sell, give away, allow the distribution of, include in a database, or create a database with, this print. Upon the signing of the duplicate notice, the arresting officer shall immediately release the person arrested from custody.
(e) The officer shall, as soon as practicable, file the duplicate notice, as follows:
(1) It shall be filed with the magistrate if the offense charged is an infraction.
(2) It shall be filed with the magistrate if the prosecuting attorney has previously directed the officer to do so.
(3) The duplicate notice and underlying police reports in support of the charge or charges shall be filed with the prosecuting attorney in cases other than those specified in paragraphs (1) and (2).
If the duplicate notice is filed with the prosecuting attorney, he or she, within his or her discretion, may initiate prosecution by filing the notice or a formal complaint with the magistrate specified in the duplicate notice within 25 days from the time of arrest. If the prosecution is not to be initiated, the prosecutor shall send notice to the person arrested at the address on the notice to appear.
The failure by the prosecutor to file the notice or formal complaint within 25 days of the time of the arrest shall not bar further prosecution of the misdemeanor charged in the notice to appear. However, any further prosecution shall be preceded by a new and separate citation or an arrest warrant.
...(f) No warrant shall be issued for the arrest of a person who has given a written promise to appear in court, unless and until he or she has violated that promise or has failed to deposit bail, to appear for arraignment, trial, or judgment or to comply with the terms and provisions of the judgment, as required by law.
...(h) A peace officer shall use the written notice to appear procedure set forth in this section for any misdemeanor offense in which the officer has arrested a person without a warrant pursuant to Section 836 or in which he or she has taken custody of a person pursuant to Section 847.
(i) Whenever any person is arrested by a peace officer for a misdemeanor, that person shall be released according to the procedures set forth by this chapter unless one of the following is a reason for nonrelease, in which case the arresting officer may release the person, or the arresting officer shall indicate, on a form to be established by his or her employing law enforcement agency, which of the following was a reason for the nonrelease:
(1) The person arrested was so intoxicated that he or she could have been a danger to himself or herself or to others.
(2) The person arrested required medical examination or medical care or was otherwise unable to care for his or her own safety.
(3) The person was arrested under one or more of the circumstances listed in Sections 40302 and 40303 of the Vehicle Code.
(4) There were one or more outstanding arrest warrants for the person.
(5) The person could not provide satisfactory evidence of personal identification.
(6) The prosecution of the offense or offenses for which the person was arrested, or the prosecution of any other offense or offenses, would be jeopardized by immediate release of the person arrested.
(7) There was a reasonable likelihood that the offense or offenses would continue or resume, or that the safety of persons or property would be imminently endangered by release of the person arrested.
(8) The person arrested demanded to be taken before a magistrate or refused to sign the notice to appear. (rest omitted)PRC 5786.17. (a) Violation of any rule, regulation, or ordinance adopted by a board of directors is a misdemeanor punishable pursuant to Section 19 of the Penal Code.
(b) Any citation issued by a district for violation of a rule, regulation, or ordinance adopted by a board of directors may be processed as an infraction pursuant to subdivision (d) of Section 17 of the Penal Code.
(c) To protect property and to preserve the peace at recreation facilities and other property owned or managed by a district, the board of directors may confer on designated uniformed district employees the power to issue citations for misdemeanor and infraction violations of state law, city or county ordinances, or district rules, regulations, or ordinances when the violation is committed within a recreation facility and in the presence of the employee issuing the citation. District employees shall issue citations pursuant to Chapter 5C (commencing with Section 853.5) of Title 3 of Part 2 of the Penal Code.VC 40302. Whenever any person is arrested for any violation of this code, not declared to be a felony, the arrested person shall be taken without unnecessary delay before a magistrate within the county in which the offense charged is alleged to have been committed and who has jurisdiction of the offense and is nearest or most accessible with reference to the place where the arrest is made in any of the following cases:
(a) When the person arrested fails to present his driver's license or other satisfactory evidence of his identity for examination.
(b) When the person arrested refuses to give his written promise to appear in court.
(c) When the person arrested demands an immediate appearance before a magistrate.
(d) When the person arrested is charged with violating Section 23152.40302.5. Whenever any person under the age of 18 years is taken into custody in connection with any traffic infraction case, and he is not taken directly before a magistrate, he shall be delivered to the custody of the probation officer. Unless sooner released, the probation officer shall keep the minor in the juvenile hall pending his appearance before a magistrate. When a minor is cited for an offense not involving the driving of a motor vehicle, the minor shall not be taken into custody pursuant to subdivision (a) of Section 40302 solely for failure to present a driver's license.VC 40303. (a) Whenever any person is arrested for any of the offenses listed in subdivision (b) and the arresting officer is not required to take the person without unnecessary delay before a magistrate, the arrested person shall, in the judgment of the arresting officer, either be given a 10 days' notice to appear, or be taken without unnecessary delay before a magistrate within the county in which the offense charged is alleged to have been committed and who has jurisdiction of the offense and is nearest or most accessible with reference to the place where the arrest is made. The officer may require that the arrested person, if he or she has no satisfactory identification, place a right thumbprint, or a left thumbprint or fingerprint if the person has a missing or disfigured right thumb, on the 10 days' notice to appear when a 10 days' notice is provided. Except for law enforcement purposes relating to the identity of the arrestee, no person or entity may sell, give away, allow the distribution of, include in a database, or create a database with, this print.
(b) Subdivision (a) applies to the following offenses:
(1) Section 10852 or 10853, relating to injuring or tampering with a vehicle.
(2) Section 23103 or 23104, relating to reckless driving.
(3) Subdivision (a) of Section 2800, insofar as it relates to a failure or refusal of the driver of a vehicle to stop and submit to an inspection or test of the lights upon the vehicle under Section 2804 hereof, which is punishable as a misdemeanor.
(4) Subdivision (a) of Section 2800, insofar as it relates to a failure or refusal of the driver of a vehicle to stop and submit to a brake test which is punishable as a misdemeanor.
(5) Subdivision (a) of Section 2800, relating to the refusal to submit vehicle and load to an inspection, measurement, or weighing as prescribed in Section 2802 or a refusal to adjust the load or obtain a permit as prescribed in Section 2803.
(6) Subdivision (a) of Section 2800, insofar as it relates to any driver who continues to drive after being lawfully ordered not to drive by a member of the California Highway Patrol for violating the driver's hours of service or driver's log regulations adopted pursuant to subdivision (a) of Section 34501.
(7) Subdivision (b) of Section 2800, relating to a failure or refusal to comply with any lawful out-of-service order.
(8) Section 20002 or 20003, relating to duties in the event of an accident.
(9) Section 23109, relating to participating in speed contests or exhibition of speed.
(10) Section 14601, 14601.1, 14601.2, or 14601.5, relating to driving while license is suspended or revoked.
(11) When the person arrested has attempted to evade arrest.
(12) Section 23332, relating to persons upon vehicular crossings.
(13) Section 2813, relating to the refusal to stop and submit a vehicle to an inspection of its size, weight, and equipment.
(14) Section 21461.5, insofar as it relates to a pedestrian who, after being cited for a violation of Section 21461.5, is, within 24 hours, again found upon the freeway in violation of Section 21461.5 and thereafter refuses to leave the freeway after being lawfully ordered to do so by a peace officer and after having been informed that his or her failure to leave could result in his or her arrest.
(15) Subdivision (a) of Section 2800, insofar as it relates to a pedestrian who, after having been cited for a violation of subdivision (a) of Section 2800 for failure to obey a lawful order of a peace officer issued pursuant to Section 21962, is within 24 hours again found upon the bridge or overpass and thereafter refuses to leave after being lawfully ordered to do so by a peace officer and after having been informed that his or her failure to leave could result in his or her arrest.
(16) Section 21200.5, relating to riding a bicycle while under the influence of an alcoholic beverage or any drug.
(17) Section 21221.5, relating to operating a motorized scooter while under the influence of an alcoholic beverage or any drug.VC 40303.5. Whenever any person is arrested for any of the following offenses, the arresting officer shall permit the arrested person to execute a notice containing a promise to correct the violation in accordance with the provisions of Section 40610 unless the arresting officer finds that any of the disqualifying conditions specified in subdivision (b) of Section 40610 exist:(a) Any registration infraction set forth in Division 3 (commencing with Section 4000).
(b) Any driver's license infraction set forth in Division 6 (commencing with Section 12500), and subdivision (a) of Section 12951, relating to possession of driver's license.
(c) Section 21201, relating to bicycle equipment.
(d) Any infraction involving equipment set forth in Division 12 (commencing with Section 24000), Division 13 (commencing with Section 29000), Division 14.8 (commencing with Section 34500), Division 16 (commencing with Section 36000), Division 16.5 (commencing with Section 38000), and Division 16.7 (commencing with Section 39000).VC 40304. Whenever any person is arrested by any member of the California Highway Patrol for any violation of any state law regulating the operation of vehicles or the use of the highways declared to be a misdemeanor but which offense is not specified in this code, he shall, in the judgment of the arresting officer, either be given a 10-day notice to appear in the manner provided in this chapter or be taken without unnecessary delay before a magistrate within the county in which the offense charged is alleged to have been committed and who has jurisdiction of the offense and is nearest or most accessible with reference to the place where the arrest is made, or, upon demand of the person arrested, before a magistrate in the judicial district in which the offense is alleged to have been committed.VC 40305. (a) Whenever a nonresident is arrested for violating any section of this code while driving a motor vehicle and does not furnish satisfactory evidence of identity and an address within this state at which he or she can be located, he or she may, in the discretion of the arresting officer, be taken immediately before a magistrate within the county where the offense charged is alleged to have been committed, and who has jurisdiction over the offense and is nearest or most accessible with reference to the place where the arrest is made. If the magistrate is not available at the time of the arrest and the arrested person is not taken before any other person authorized to receive a deposit of bail, and if the arresting officer does not have the authority or is not required to take the arrested person before a magistrate or other person authorized to receive a deposit of bail by some other provision of law, the officer may require the arrested person, if he or she has no satisfactory identification, to place a right thumbprint, or a left thumbprint or fingerprint if the person has a missing or disfigured right thumb, on the notice to appear as provided in Article 2 (commencing with Section 40500).
Except for law enforcement purposes relating to the identity of the arrestee, no person or entity may sell, give away, allow the distribution of, include in a database, or create a database with, this print. (rest omitted)40305.5. (a) Whenever a nonresident is arrested for violating any section of this code while driving a commercially registered motor vehicle, excluding house cars, with an unladen weight of 7,000 pounds or more, and does not furnish satisfactory evidence of identity and an address within this state at which he or she can be located, the arresting officer may, in lieu of the procedures set forth in Section 40305, accept a guaranteed traffic arrest bail bond certificate, and the nonresident shall be released from custody upon giving a written promise to appear as provided in Article 2 (commencing with Section 40500). The officer may require the arrested person, if he or she has no satisfactory identification, to place a right thumbprint, or a left thumbprint or fingerprint if the person has a missing or disfigured right thumb, on the notice to appear as provided in Article 2 (commending with Section 45000). Except for law enforcement purposes relating to the identity of the arrestee, no person or entity may sell, give away, allow the distribution of, include in a database, or create a database with, this print. (rest omitted)Isn't it interesting that the PROVISIONS the COURT CITED that "limited the circumstances in which a peace officer may effect a custodial arrest for minor offenses" relate to a LAWFUL ARREST BY WARRANT for a MISDEMEANOR or PRESUME that you have ALREADY been LAWFULLY ARRESTED, except for CITATIONS issued in district recreational facilities?And isn't it curious that the ONLY MENTION of a WARRANTLESS ARREST is PC 853.6(h) which states "A peace officer shall use the written notice to appear procedure set forth in this section for any misdemeanor offense in which the officer has arrested a person without a warrant pursuant to Section 836 or in which he or she has taken custody of a person pursuant to Section 847."?Especially since the police's power to ARREST is BASED on them having PROBABLE CAUSE that you have committed a CRIME, isn't it?
When the officers interrupted the two men and restricted their liberty of movement, the arrest, for purposes of this case, was complete. It is, therefore, necessary to determine whether at or before that time they had reasonable cause to believe that a crime had been committed." HENRY v. UNITED STATES, 361 U.S. 98 (1959)
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Amendment IV, Constitution for the United States of America"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." Amendment V, Constitution for the United States of America
http://laws.findlaw.com/us/361/98.html"Both the standards and procedures for arrest and detention have been derived from the Fourth Amendment and its common-law antecedents. See Cupp v. Murphy, 412 U.S. 291, 294 -295 (1973); Ex parte Bollman, 4 Cranch 75 (1807); Ex parte Burford, 3 Cranch 448 (1806). The standard for arrest is probable cause, defined in terms of facts and circumstances "sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense." [420 U.S. 103, 112] Beck v. Ohio, 379 U.S. 89, 91 (1964). See also Henry v. United States, 361 U.S. 98 (1959); Brinegar v. United States, 338 U.S. 160, 175 -176 (1949). This standard, like those for searches and seizures, represents a necessary accommodation between the individual's right to liberty and the State's duty to control crime.
"These long-prevailing standards seek to safeguard citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime. They also seek to give fair leeway for enforcing the law in the community's protection. Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability. The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating these often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers' whim or caprice." Id., at 176.To implement the Fourth Amendment's protection against unfounded invasions of liberty and privacy, the Court has required that the existence of probable cause be decided by a neutral and detached magistrate whenever possible. The classic statement of this principle appears in Johnson v. United States, 333 U.S. 10, 13 -14 (1948):"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection [420 U.S. 103, 113] consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."See also Terry v. Ohio, 392 U.S. 1, 20 -22 (1968). 12...Under this practical compromise, a policeman's on-the-scene assessment of probable cause provides legal justification [420 U.S. 103, 114] for arresting a person suspected of crime, and for a brief period of detention to take the administrative steps incident to arrest....This result has historical support in the common law that has guided interpretation of the Fourth Amendment. See Carroll v. United States, 267 U.S. 132, 149 (1925). At common law it was customary, if not obligatory, for an arrested person to be brought before a justice of the peace shortly after arrest. 2 M. Hale, Pleas of the Crown 77, 81, 95, 121 (1736); 2 W. Hawkins, Pleas of the Crown 116-117 (4th ed. 1762). See also Kurtz v. Moffitt, 115 U.S. 487, 498 -499 (1885). 14 The justice of the peace [420 U.S. 103, 115] would "examine" the prisoner and the witnesses to determine whether there was reason to believe the prisoner had committed a crime. If there was, the suspect would be committed to jail or bailed pending trial. If not, he would be discharged from custody. 1 M. Hale, supra, at 583-586; 2 W. Hawkins, supra, at 116-119; 1 J. Stephen, History of the Criminal Law of England 233 (1883). 15 The initial determination of probable cause also could be reviewed by higher courts on a writ of habeas corpus. 2 W. Hawkins, supra, at 112-115; 1 J. Stephen, supra, at 243; see Ex parte Bollman, 4 Cranch, at 97-101. This practice furnished the model for criminal procedure in America immediately following the adoption of the [420 U.S. 103, 116] Fourth Amendment, see Ex parte Bollman, supra; 16 Ex parte Burford, 3 Cranch 448 (1806); United States v. Hamilton, 3 Dall. 17 (1795), and there are indications that the Framers of the Bill of Rights regarded it as a model for a "reasonable" seizure. See Draper v. United States, 358 U.S., at 317 -320 (DOUGLAS, J., dissenting). 17
These adversary safeguards are not essential for the probable cause determination required by the Fourth Amendment. The sole issue is whether there is probable cause for detaining the arrested person pending further proceedings. This issue can be determined reliably without an adversary hearing. The standard is the same as that for arrest. 21 That standard - probable cause to believe the suspect has committed a crime - traditionally has been decided by a magistrate in a nonadversary proceeding on hearsay and written testimony, and the Court has approved these informal modes of proof." GERSTEIN v. PUGH, 420 U.S. 103 (1975)
http://laws.findlaw.com/us/420/103.html"Probable cause to arrest without a warrant represents an objective legal standard by which to measure the reasonableness and sufficiency of the officer's subjective beliefs that the defendant has committed an offense. (See Beck v. Ohio, supra, 379 U.S. at p. 96 [13 L.Ed.2d at pp. 147-148]; People v. Talley, supra, 65 Cal.2d at p. 835; People v. Superior Court (1970) 3 Cal.3d 807, 821 [91 Cal.Rptr. 729, 478 P.2d 449].) "[U]nless it is first established that the police officer believed that the crime ... had been committed by the [defendant], the issue of probable cause does not arise, for it would be a logical absurdity for the courts to be asked to determine the reasonableness of an officer's belief that [the] particular crime had been committed unless it were first established that the officer did entertain such a belief." (Agar v. Superior Court (1971) 21 Cal.App.3d 24, 28-29 [98 Cal.Rptr. 148] (italics in original).) [3c] People v. Miller , 7 Cal.3d 219
http://login.findlaw.com/scripts/callaw?dest=ca/cal3d/7/219.html"Alternatively, in light of Atwater v. City of Lago Vista (2001) 532 U.S. 318 [121 S.Ct. 1536, 149 L.Ed.2d 549], the seatbelt violation which led to the initial detention also supplied probable cause for defendant's de facto arrest. In Atwater, the Supreme Court held that an officer who "has probable cause to believe that an individual has committed even a very minor criminal offense in his presence . . . may, without violating the Fourth Amendment, arrest the offender." (Atwater v. City of Lago Vista, supra, 532 U.S. at p. 354 [warrantless arrest of motorist jailed for committing seatbelt and other minor traffic offenses was not unconstitutional].) ..."Probable cause to arrest exists if facts known to the arresting officer would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that an individual is guilty of a crime. [Citation.]" (People v. Kraft (2000) 23 Cal.4th 978, 1037.) People v. Gomez (2004)117 Cal.App.4th 531 , Cal.Rptr.3dAnd ONLY MISDEMEANORS & FELONIES are CRIMES, aren't they?PC 31. All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission, and all persons counseling, advising, or encouraging children under the age of fourteen years, lunatics or idiots, to commit any crime, or who, by fraud, contrivance, or force, occasion the drunkenness of another for the purpose of causing him to commit any crime, or who, by threats, menaces, command, or coercion, compel another to commit any crime, are principals in any crime so committed.
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=30-33The FACT is that regardless of the ALLEGED "offense" they REQUIRE you to make a PROMISE TO APPEAR after they have ARRESTED you and before they RELEASE you on your own recognizance, don't they?PC 853.7. Any person who willfully violates his or her written promise to appear or a lawfully granted continuance of his or her promise to appear in court is guilty of a misdemeanor, regardless of the disposition of the charge upon which he or she was originally arrested.
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=853.5-853.85Despite the FACT that NOT PROMISING to APPEAR is NOT a CRIME."Tilton argues that he cannot be guilty of violating these statutes because he was not asked to acknowledge, and he did not refuse to acknowledge, receipt of a copy of the traffic infraction. His premise is that promising to appear in court is different from acknowledging receipt of a copy of a document, and that he was only asked to make a promise to appear in court. We agree. A person does not acknowledge receipt of a copy of a document merely because he or she promises to appear in court. Nor does a person decline to acknowledge receipt of a copy of a document merely because he or she declines to promise to appear in court. Thus, Tilton did not refuse to acknowledge receipt of a copy of the notice of infraction merely because he declined to promise to appear in court, and the City's evidence is insufficient to prove the facts needed to convict under RCW 46.61.021(3). Our conclusion is supported by the fact that if we held otherwise, we would allow Tilton to be convicted for refusing to make a promise that he had a right not to make. As the City conceded at oral argument, a motorist stopped for a traffic infraction has no legal duty to promise to appear in court; if he or she refuses to make such a promise, he or she can be taken to jail, but he or she does not commit a crime merely by virtue of the refusal." Port Orchard v. Tilton, 77 Wn.App 178 (1995)
http://search.mrsc.org/nxt/appellate/077wnapp/077wnapp0178.htmNotice that they said COULD BE and NOT "will be" or even "should be."Could that be because they KNOW that they can TRY YOU once you are in their "court", REGARDLESS of how you got there (ILLEGAL ARREST, KIDNAPPING, etc) as long as they give you a "supposedly" FAIR TRIAL?"This Court has never departed from the rule announced in Ker v. Illinois, 119 U.S. 436, 444 , that the power of a court to try a person for crime is not impaired by the fact that he had been brought within the court's jurisdiction by reason of a "forcible abduction." 7 No persuasive reasons are now presented to justify overruling this line of cases. They rest on the sound basis that due process of law is satisfied when one present in court is convicted of crime after having been fairly apprised of the charges against him and after a fair trial in accordance with constitutional procedural safeguards. There is nothing in the Constitution that requires a court to permit a guilty person rightfully convicted to escape justice because he was brought to trial against his will." FRISBIE v. COLLINS, 342 U.S. 519 (1952)
http://laws.findlaw.com/us/342/519.htmlSo how is it that you can be LAWFULLY ARRESTED and PUNISHED for something, especially a NON-CRIME such as an INFRACTION, WITHOUT a WARRANT?"SEC. 10. Witnesses may not be unreasonably detained. A person may not be imprisoned in a civil action for debt or tort, or in peacetime for a militia fine.
...SEC. 13. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable seizures and searches may not be violated; and a warrant may not issue except on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized." ARTICLE 1, STATE OF CALIFORNIA CONSTITUTION (1879)The FACT is that the AUTHORITY to make a WARRANTLESS ARREST actually pertains to PUBLIC OFFENSES & FELONIES and that you have the RIGHT to see a magistrate after you have been ARRESTED for a PUBLIC OFFENSE and those PROVISIONS of the PENAL CODE are for CRIMINAL CHARGES.PC 145. Every public officer or other person, having arrested any person upon a criminal charge, who willfully delays to take such person before a magistrate having jurisdiction, to take his examination, is guilty of a misdemeanor.PC 836. (a) A peace officer may arrest a person in obedience to a warrant, or, pursuant to the authority granted to him or her by Chapter 4.5
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- On Jan 10, 2006, at 1:28 AM, <paradoxmagnus@...> wrote:
> It appears to me that most people are proceeding according to DOGMAAll your research would be useful, if there really WERE any "officers"
> and are RATIONALIZING things because they are UNABLE to SUBSTANTIATE
> what they BELIEVE in LAW.
> They believe that the POLICE can STOP & CITE you for anything, yet
> they can't seem to produce any real EVIDENCE to show HOW & WHY,
> despite all of the EVIDENCE to the CONTRARY.
acting for the state in California. I cannot understand why you are so
ready to waive the INITIAL REQUIREMENT and then argue innumerable side
Many of your cites contain the word "officer". Please explain how your
understanding of the word differs from that comprehended by the state
constitution (Art. XX section 3).