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Is Probable Cause at Risk? Is this a win or a setback?

eye95

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When both parties verbally told them they were safe that ended the officers leeway to enter.

They should have been gone long before they "heard glass break".Assuming they did.
I disagree. I don’t know that how much time passed between when one might argue that the police should have left and when they heard the glass breaking. It could have been seconds. At most, it was probably minutes. I have no problem if the police hesitated in leaving from outside the home, wanting to be in position if help were needed. The sound of glass breaking could create a reasonable belief that an assault is taking place inside and that their help was needed.

Still, I don’t see obstruction here. There is no moral duty (and, therefore, should be no legal duty) to assist the police in making a mistake.
 

OC for ME

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Exigent circumstances - "circumstances that would cause a reasonable person to believe that entry..."

I think that the officers were acting on the belief that entry was required to aid someone in distress, which would be exigent circumstances. That it may have take them several minutes to accomplish such entry doesn't negate the necessity.

Was there enough evidence to charge domestic violence? Who had the last say on which charges would be pursued in court?
I think the cops made the whole story up after they got rebuked. Where is the broken glass...no mention of any evidence that confirms their claim, that they used to substantiate the home invasion. The cops lied. The "perp" conceded the "q-munity care taking" exemption...big mistake. Just cuz a cop says it does not make it true. The perp should have pounded the cops on that point...moot now of course.

They were not respected by a serf and this shall not stand.
 

Ghost1958

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Exigent circumstances - "circumstances that would cause a reasonable person to believe that entry..."

I think that the officers were acting on the belief that entry was required to aid someone in distress, which would be exigent circumstances. That it may have take them several minutes to accomplish such entry doesn't negate the necessity.

Was there enough evidence to charge domestic violence? Who had the last say on which charges would be pursued in court?
The officers were acting on the fact they made a illegal demand and we're told no. Which guaranteed they were going to bust in that door regardless.

They shouldn't have been there 20 minutes.
They shouldn't have been there two minutes after being told by both parties they were safe.
 

eye95

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I have no doubt there was broken glass. IIRC, the couple stated that some glass was broken.

Whether or not the police lied about what they heard would be a question of criminal activity on their part. It would require proof beyond a reasonable doubt of their lie to convict them. That is a practical impossibility.

Again, though, their potential misbehavior and the misbehavior of the defendant are separable questions. The question in the defendant’s case is, “Did he have a legal duty to assist the police in making a mistake?” I say he didn’t. Any law says he did is anti-constitutional.
 

Ghost1958

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I have no doubt there was broken glass. IIRC, the couple stated that some glass was broken.

Whether or not the police lied about what they heard would be a question of criminal activity on their part. It would require proof beyond a reasonable doubt of their lie to convict them. That is a practical impossibility.

Again, though, their potential misbehavior and the misbehavior of the defendant are separable questions. The question in the defendant’s case is, “Did he have a legal duty to assist the police in making a mistake?” I say he didn’t. Any law says he did is anti-constitutional.
There was no misbehavior on the part of the occupant.
 

color of law

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I said earlier to read the footnotes. you didn't, or if you did you guys ignored it.
The dissent states that "everyone, including McLemore, agrees that the officers responding to the domestic violence call had the constitutional authority to demand entry pursuant to the community caretaking exception to the warrant requirement" and that "McLemore did have a duty to comply with lawful police orders to open the door. "Dissent at 1, 8. We respectfully disagree with this characterization of the case. We agree that the officers had the constitutional authority to enter the home pursuant to the community caretaking exception to the warrant requirement. We do not agree that McLemore had a duty to comply with the police's demand to open the door.
When you agree, it is down hill from there.

The defense did NOT make the state prove that a exigent circumstance existed. The defense attorney sold his client down the river.
 

eye95

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Whether or not the police reasonably believed exigent circumstances existed goes to the separate question of misbehavior by the cops. According to the defendant’s story, such circumstances did not exist. It is possible for the cops to reasonably believe things that are not true.
____

“We agree that the officers had the constitutional authority to enter the home pursuant to the community caretaking exception to the warrant requirement. We do not agree that McLemore had a duty to comply with the police's demand to open the door.”

This is my precise take on the case.
 

color of law

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Whether or not the police reasonably believed exigent circumstances existed goes to the separate question of misbehavior by the cops. According to the defendant’s story, such circumstances did not exist. It is possible for the cops to reasonably believe things that are not true.
____

“We agree that the officers had the constitutional authority to enter the home pursuant to the community caretaking exception to the warrant requirement. We do not agree that McLemore had a duty to comply with the police's demand to open the door.”

This is my precise take on the case.
Once the defendant's attorney agreed that the cops had a right to enter, the case was lost. If the prosecution can't prove an exigent circumstances existed then you can't get to the question of interfering with the cops.

Defense attorneys make these mistakes all the time. The reason Ohio has conceal carry is because in the original case the defense attorneys demanded the prosecution prove what the defendant was carrying was a weapon first before getting to the issue of carrying a weapon illegally.
 

solus

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Eye95, go read the entire WASC case instead of the copyrighted newspeek biased article...

HERE - http://www.courts.wa.gov/opinions/pdf/957070.pdf

Reading the background of the initial court proceedings shows McLemore had an idiot for trial lawyer.

That one WASC jurist didn’t sit in and then the court deadlocked shows unequivocally McLemore has absolutely no luck in life’s dealings whatsoever.
 

eye95

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Once the defendant's attorney agreed that the cops had a right to enter, the case was lost. If the prosecution can't prove an exigent circumstances existed then you can't get to the question of interfering with the cops.

Defense attorneys make these mistakes all the time. The reason Ohio has conceal carry is because in the original case the defense attorneys demanded the prosecution prove what the defendant was carrying was a weapon first before getting to the issue of carrying a weapon illegally.
The defendant never denied the fact of the broken glass. In fact both residents admitted to the broken glass. No doubt, there was broken glass found at the scene. What was there to fight??? The 911 call combined with the breaking glass created the exigent circumstances. Even the dissent agreed with that point.

However, once again, my point is that even if the cops had the right to break down the door, which I believe they did, the defendant had no moral duty to assist them in making an error (even a justifiable one). Having no moral duty should translate to having no legal duty—IMO (and, apparently, in the opinion of the dissent—and, hopefully, in the opinion of SCOTUS).
 

color of law

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The defendant never denied the fact of the broken glass. In fact both residents admitted to the broken glass. No doubt, there was broken glass found at the scene. What was there to fight??? The 911 call combined with the breaking glass created the exigent circumstances. Even the dissent agreed with that point.

However, once again, my point is that even if the cops had the right to break down the door, which I believe they did, the defendant had no moral duty to assist them in making an error (even a justifiable one). Having no moral duty should translate to having no legal duty—IMO (and, apparently, in the opinion of the dissent—and, hopefully, in the opinion of SCOTUS).
What you are saying is the defendants have a DUTY to SELF CONFESS. Now, don't deny it. You are making an argument that they have to acknowledge allegations as fact. Allegations are not facts until proven in court. Defendants keep their mouths shut. They don't acknowledge anything. What is the 5th amendment all about?
 
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Ghost1958

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OK. Let's see.
My wife and I are speaking loudly to each other.

A nosey neighbor [thank God I have none] calls Popo.

That gives popo the right to demand entry to my home with no warrant?


Ain't happening.
 

eye95

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I said no such thing.

There you go putting words in my mouth.

The rational way to express a lack of understanding of what I wrote is: “Are you saying that the defendant has a duty to self-confess?” To which I would have replied, “No. I am merely stating the facts of the case. The defendant DID state that glass was broken, and offered his explanation of how the glass was broken.”

However, this distraction aside, I will restate my position: The glass breaking combined with the 911 call did give the officers reason to believe that someone was in danger in the apartment. They were right to demand the door be opened. The defendant was within his Rights not to open the door. The cops were right to break the door down. The defendant had no moral duty to open the door, and therefore should not be guilty of obstruction.
 

eye95

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OK. Let's see.
My wife and I are speaking loudly to each other.

A nosey neighbor [thank God I have none] calls Popo.

That gives popo the right to demand entry to my home with no warrant?


Ain't happening.
If anyone contended that, I would disagree with them. No one in this thread, nor any of the courts, nor the prosecutor has made that argument.

It is a strawman argument—not made, but easily refuted.
 

Ghost1958

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If anyone contended that, I would disagree with them. No one in this thread, nor any of the courts, nor the prosecutor has made that argument.

It is a strawman argument—not made, but easily refuted.
That's exactly what happened in this case minus the glass breaking part.


You said your self the police acted properly demanding and forcing entry.


Don't make me copy and paste your words by denying it.

No argument anyway. Police want entry to my home, have a warrant.

Otherwise they are just ordinary armed home invaders.
 

eye95

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Um...the glass breaking is what finished creating the exigent circumstances, that resulted in the police demanding and forcing entry, so it is not some unimportant minor detail.

So, cut and paste my words. Have at it. Unless you edit my words, all will find me mentioning the breaking glass in post after post after post after post...

Absent the breaking of the glass, entry by the officers would have been wrong and, IMO, unlawful.
 

OC for ME

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The court record places doubt as to when the glass broke. My reading is that it broke after the pounding/loud cursing by the cops on the door and after the cops stating that they will break down the door...because of the comments on the balcony.

Cops blew it and got away with it cuz the perp had a dolt for a lawyer.
 

eye95

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True.

Had they not heard the glass breaking, all the pounding and demanding would not have warranted entry.

Once they heard the glass breaking, it became reasonable for them to believe, with the context of the 911 call, that an actual physical fight was going on and that someone was in danger. Exigent circumstances; break down the door.

This is how cops should behave. When they reasonably believe that someone is in danger, they step in, through closed doors, if necessary.

Again, though, the point of the dissent, and my point, remains that the defendant had no duty in assisting the cops in their effort that was based on their mistaken, but reasonable, belief.
 

solus

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OK. Let's see.
My wife and I are speaking loudly to each other.

A nosey neighbor [thank God I have none] calls Popo.

That gives popo the right to demand entry to my home with no warrant?


Ain't happening.
Uh in Colorado DV, Denver and surrounds, is right up there with sex offenders. If someone complains and calls LEs doors are immediately kick in to rescue the victim and someone is going to jail right then and there as the state is now the complaint!

then the next morning individual is sentenced to a minimum of 30 weeks of 2 hr DV ‘counseling’ plus if the jailed subject is belligerent possible weekly parole officer visits for a year!

Notice i didn’t state the individual had an option but is sentenced...well if an individual pleads not guilty [rare] they are then sent back to county jail which is suppose to house 800 but probably has closer to 1100 with the open spaces filled with cots, TVs blaring hispanic channels and a noise level of a crowded techno dance venue. So most individuals select to accept a guilty plea rather go back to await a court date in the distant future!

DV counseling [counselors ‘trained’ & certified by CO DoJ] is done in group session @ $30/week and PO visits are another < $50/visit. Those found guilty of DV are precluded by CO statutes from seeing private MH professional until their 26th week of DV training is completed. Additionally, the perps are receiving anger mgmt & coping skills but their partners are not which causes further rifts with their partner who decide they are going to get even over some slight, real or perceived, and dial 911 to report their partner, who then gets arrested once again and the cycle continues for the perp, this time now automatically has PO & DV sessions extended to 52 weeks.

Friend who has since passed had 4 counselors each seeing upwards to 100 > 120 clients weekly 90% low income male perps.

480 x $30 = $14.4K x 50 = $720k/annum. It is big business and DoJ have made it to facilitate the profit center.
 
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