| T O P I C R E V I E W |
| doer |
Posted - 16 Jul 2006 : 18:25:42
Traffic Stops, from my understanding, are an unlawful ARREST - even if the "officer" says that you are not "under arrest." If not, they I am free to go, officer? Good-bye! (Try THAT one and see what he says!) The following is from "Fighting For Liberty" Website.
--George
http://fightingforliberty.org/content/view/22/26/
Pulling You Over Is (Unlawful) Arrest
Posted by Zach Doty
OFFICER, AM I UNDER ARREST OR AM I FREE TO LEAVE?
WASHINGTON LAW HOLDS THAT IF I AM NOT FREE TO LEAVE, THEN I AM UNDER ARREST!
Do NOT tell me that I am NOT under “arrest” and that I am merely being “detained” because the word “arrest” is used to define the word “detain” to wit:
“Detain. To retain as the possession of personalty, To arrest, to check, to delay, to hinder, to hold, or keep in custody, to retard, to restrain from proceeding, to stay, to stop. People v. Smith, 17 Cal.App.2d 468, 62 P.2d 436, 438; State v. King, 303 S.W.2d 930, 934. See Confinement; Custody.” Blacks Law Dictionary, Fifth Edition on page 404.
Washington Court’s have consistently held that once you turn on your lights and stop me, that you have invoked a seizure, that I am not free to leave and that I am under arrest to wit:
“A motorist is seized when a police officer pulls up behind his car and activates full emergency lights.” State v. DeArman, 54 Wn. App. 621, 624, 774 P.2d 1247 (1989).
“Under the totality of the circumstances, the officers’ attempt to summon the occupants of the parked car with both their emergency lights and high beam headlights constituted a show of authority sufficient to convey to any reasonable person that voluntary departure from the scene was not a reasonable alternative. Cf. United States v. Palmer, 603 F.2d 1286, 1289 (8th Cir. 1979). In the present case, however, we conclude that Stroud was “seized”, for Fourth Amendment purposes, at the moment the officers pulled up behind the parked vehicle and switched on the flashing light.” State v. Stroud, 30 Wn.App. 392 (1981).
“A person is “seized” within the meaning of the Fourth Amendment only when, in light of all the surrounding circumstances, a reasonable person would believe that he or she was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554 100 S.Ct 1870, 64 Led. 2d 497 (1980); State v. Young, 135 Wn.2d 498, 509, 957 P.2d 681 (1998).
“Under both state and federal law, whenever a police officer stops a motorist, he has “seized” him.” State v. Silvernail, 25 Wn.App. 185, 605 P.2d 1279 (1980).
The Court in Seattle v. Sage, 11 Wn. App. 481, at pages 484-485, 523 P.2d 942, rev. denied 84 Wn.2d 1013 (1973), observed: “. . . a person is placed under arrest when he is deprived of his liberty by an officer who intends to arrest him. The arresting officer does not need to orally communicate this intent to the person being arrested. State v. Sullivan, 65 Wn.2d 47, 395 P.2d 745 (1964). Here the arrest occurred when the officer informed the aid car attendant that the defendant was under arrest and was not to be allowed to leave. The arrest was valid. (Emphasis mine). See also State v. McIntyre, 92 Wn.2d 620, 623, 600 P.2d 1009 (1979).
State v. Byers, 88 Wn.2d 1, 559 P.2d 1234 (1977) cited with approval in State v. Dunn, 22 Wn.App. 362 (1979), appears to be the modern case most cited in Washington as to what constitutes an arrest. At page 5 the court states: “A person is restrained or imprisoned when he is deprived of either liberty of movement or freedom to remain in the place of his lawful choice; and such restraint or imprisonment may be accomplished by physical force alone, or by threat of force, or by conduct reasonably implying that force will be used. Kilcup v. McManus, 64 Wn.2d 771, 777, 394 P.2d 375 (1964). Appellants were under arrest from the moment they were not, and knew they were not free to go. United States v. See, 505 F.2d 845, 855 (9th Cir. 1974) ‘when the officers interrupted the two men and restricted their liberty of movement, the arrest for purposes of this case was complete’ Henry v. United States, (supra) at 103.” State v. Byers, supra, at page 5. See also Moore v. Pay ‘n Save, 20 Wn.App. 482 (1978).
In State v. Sullivan, 65 Wn.2d 47, 395 P.2d 745 (1964), the court observed at page 51: “Perhaps it should be mentioned that as a general rule a person is placed under arrest when he is deprived of his liberty by an officer who intends to arrest him. It is not always necessary for the officer to make a formal declaration of arrest. See: 1 Varon, Searches, Seizures and Immunities, 75 (1961); Henry v. United States, 361 U.S. 98, 4 L.Ed.2d 134, 80 S.Ct. 168 (1959) and United States v. Boston, 330 F.2d 937 (1964). And;
“The stopping of an automobile by a highway patrol officer for inspection of a driver’s license, or for any other purpose where it is accomplished by the authority of the officers, is an “arrest.” Robinson v. State, 198 S.W.2d 633, 635, 184 Tenn. 277
“A motorist stopped by a traffic officer for a traffic offense would be considered “arrested” . . . even if the motorist was not specifically informed that he had been arrested.” People ex rel. Winkle v. Bannan, 125 N.W.2d 875, 879, 372 Mich. 292.
“Any restraint, however slight, upon another’s liberty to come and go as one pleases, constitutes an “arrest.” Swetnam v. W.F. Woolworth Co., 318 P.2d 364, 366, 83 Ariz. 189.
See also United States v. Boston, 330 F.2d 937 (1964); United States v. Shelby, 407 F.2d 241 (Ninth Circuit, 1969); United States v. Willis, 248 F.Supp. 265 (D.C. 1965); Virgin Island v. Quinones, 301 F.Supp. 246 (D.V.I. 1969); State v. Mallet, 542 S.W. 2d 584; Pullins v. State, 256 N.E. 2d 553, 556 (Sup.Ct. Ind., 1970); Dillon v. State, 275 N.E.2d 312 (Sup.Ct.Ind., 1971); United States v. Strickler, 490 F.2d 378 (9th Cir. 1974); Jackson v. United States, 408 F.2d 1165, 1169 (8th Cir. 1969); Presly v. State, 75 Florida 434, 78 So. 532, LRA 1918 C. 975; 4 Wharton’s Criminal Procedure 281; and 4 Am Jur. 5 defining what constitutes an “arrest."
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| 3 L A T E S T R E P L I E S (Newest First) |
| Codee |
Posted - 28 Aug 2006 : 14:57:48
I also think this case might be usefull to anyone who gets the chance to take this to a higher court. Just make the bridge from "home" to "car."
quote:
U.S. Supreme Court
WELSH v. WISCONSIN, 466 U.S. 740 (1984)
"The warrantless, nighttime entry of petitioner's home to arrest him for a civil, nonjailable traffic offense, was prohibited by the special protection afforded the individual in his home by the Fourth Amendment. Pp. 748-754. "
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| Codee |
Posted - 28 Aug 2006 : 14:46:27
SUPERIOR COURT
IN ______ COUNTY
AT ________ CITY CALIFORNIA
PEOPLE OF THE STATE OF CALIFORNIA
V
CASE DOCKET# __________
XXXXXX X. XXXXXXX
Appearing specially
Motion to Dismiss due to lack of Jurisdiction
NOTICE
1) The court upon receipt of this document, will be deemed noticed of Xxxxxx Xxxxxx’s motion to dismiss due to lack of jurisdiction.
ARGUMENT
It is hereby argued by the accused that the immediate court and the prosecuting party lack both subject matter jurisdiction and in personam jurisdiction.
The immediate court lacks subject matter jurisdiction. The code of civil procedure explicitly states that there are but two types of remedies, special proceedings and actions [Fn-1.] These two types of actions are civil and criminal [Fn-3.] This ought to mean that if an action is “non-criminal” then it is civil. The right to prosecute one type of action is not merged with the other a when person’s conduct violates both civil and criminal elements of the law [Fn-6.] The code of civil procedure states that the penal code proscribes the procedure for prosecuting criminal actions [Fn-5.] [Fn-2] [Fn-4]
The accused has been subject to criminal procedure for a civil action [Fn-7.] Accused has been kept in court-to-court arrest and enjoys liberty only upon signing a bail or recognizance. This is a display of criminal jurisdiction in a civil matter.
The accused had a plea entered by the court of not guilty. The court then held accused on a recognizance. The accused was never shown a formal complaint, which is required to be filed, so as to retaining jurisdiction. Holding of the accused by way of recognizance is within jurisdictional limitations for crimes with a formal complaint on record. Without such a complaint jurisdiction does not exist to hold. A court without jurisdiction has no power to hold, continue or otherwise proceed [Fn-13] [Fn-14] [Fn-15.]
Further, this court exceeded and continues to exceed its proscribed statutory jurisdiction by conducting affairs outside of the limitations allowed by statute by refusing to supply a court reporter upon demand by the accused [Fn-9] [Fn-10.]
Accused also contends that in personam jurisdiction was lost when the accused was placed under civil arrest by officer Wagner. Civil arrest, which is highly criticized and historically used only in post judgement, to secure the payment of such judgment, was improperly used. As a result accused was pulled into this court action involuntarily. By exceeding his jurisdiction in arresting the accused, Officer Wagner forfeited in personam jurisdiction in this case. It is further alleged by the accused that Officer Wagner did not have probable cause to make an arrest for a public offense [Fn-8.]
Footnotes
*Fn-1
Code of Civil Procedure sec. 21. “These remedies are divided into two classes:
1. Actions; and,
2. Special proceedings.”
*Fn-2
Code of Civil Procedure sec. 22. “An action is an ordinary proceeding in a court of justice by which one party prosecutes another for the declaration, enforcement, or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense.”
*Fn-3
Code of Civil Procedure sec. 24. “Actions are of two kinds:
1. Civil; and,
2. Criminal.”
*Fn-4
Code of Civil Procedure sec. 25. “A civil action arises out of:
1. An obligation;
2. An injury.”
*Fn-5
Code of Civil Procedure sec. 31. THE PENAL CODE defines and provides for the prosecution of a criminal action.
*Fn-6
Code of Civil Procedure sec. 32. When the violation of a right admits of both a civil and criminal remedy, the right to prosecute the one is not merged in the
other.
*Fn-7
People vs. Battle 50 Cal app. 3rd supp.1 AND People v. Sava 190 Cal App. 3rd 935 state that infractions are non-criminal
*Fn-8
Freedom Riders (F.I.G.H.T.) v. Hannigan (commissioner of CHP) (exact cite unknown at this time) This 9th circuit federal appellate court ruling states that in California traffic stops are arrests for which probable cause is needed.
*Fn-9
Auto Equity Sales, Inc. v. Superior Court , 57 Cal.2d 450 [S. F. No. 20843. In Bank. Mar. 22, 1962.] Reads in part (Emphasis added in bold):
“[1] Under these facts, whether or not the Kroiss case was decided correctly, the appellate department of the superior court exceeded its "jurisdiction," as that term is used in connection with the writ of certiorari, in refusing to follow a rule established by a court of superior jurisdiction.
[2] Certiorari, like prohibition, is, of course, a "juristdictional" writ. While it cannot be used to attack an error of a lower tribunal committed in the exercise of its jurisdiction, it is available when that tribunal has acted in excess of its "jurisdiction." (Simmons v. Superior Court, 52 Cal.2d 373 [341 P.2d 13]; Portnoy v. Superior Court, 20 Cal.2d 375 [125 P.2d 487].) [3] The meaning of "jurisdiction" for [57 Cal.2d 455] the purposes of certiorari and prohibition is different and broader than the meaning of the same term when used in connection with "jurisdiction" over the person and subject matter. (Abelleira v. District Court of Appeal, 17 Cal.2d 280 , 288 [109 P.2d 942, 132 A.L.R. 715]; Goldberg, The Extraordinary Writs and The Review of Inferior Court Judgments (1948) 36 Cal.L.Rev. 558, 576.) [4] In commenting on the meaning of "jurisdiction" in a prohibition case, it was said in Abelleira that, "Speaking generally, any acts which exceed the defined power of a court in any instance, whether that power be defined by constitutional provision, express statutory declaration, or rules developed by the courts and followed under the doctrine of stare decisis, are in excess of jurisdiction, in so far as that term is used to indicate that those acts may be restrained by prohibition or annulled on certiorari." (17 Cal.2d at p. 291.)”
*Fn-10
Mitchell v. Superior Court, 28 Cal.App.3d 759, 104 Cal Rptr 921.
"”... it seems well settled (and there appears to be no case holding to the contrary) that when a statute authorizes prescribed procedure, and the court acts contrary to the authority thus conferred, it has exceeded its jurisdiction, and certiorari will lie to correct such excess.'" (Also see: Rodman v. Superior Court (1939) 13 Cal.2d 262 , 269-271 [89 P.2d 109]; Code Civ. Proc., §§ 1068, 1222.)”“
*Fn-12
Ralph v Police Court of El Cerrito (1948) 84 Cal App.2d 257, 190 P2d 632.
“Where defendant charged in a police court with violation of § 505(b) pleaded not guilty and did not waive the filing of a complaint, such filing was mandatory.”
*Fn-13
People v Agnew (1952, App Dep't Super Ct) 110 Cal App 2d Supp 837, 242 P2d 4 10.
“Jurisdiction of the Municipal Court of Los Angeles to try a defendant for a traffic:violation and enter judgment depends upon the existence of a formal complaint.”
*Fn-14
Rupley v Johnson (1953) 120 Cal App 2d 548, 261 P2d 318.
“On a plea other than guilty to traffic violations and in the absence of a waiver, a complaint must be filed before the court has jurisdiction.”
*Fn-15
Gavin v Municipal Court of San Diego Judicial Dist. (1960, 4th Dist) 184 Cal App 2d 712, 7 Cal Rptr 732.
“Defendant cited for and charged with violating section of Vehicle Code who pleads not guilty and does not waive filing of misdemeanor complaint, is not brought within jurisdiction of municipal, or other inferior, court, until verified complaint charging him with offense in question has been filed.”
I SWEAR THAT THE FORGOING INFORMATION IS TRUE AND CORRECT TO THE BEST OF MY KNOLEDGE.
By: __________________
Xxxxxxxx Xxxxxxxx DATE___________
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| artsfree |
Posted - 26 Jul 2006 : 10:43:10
I am currently in between court hearings. I live in Victoria Australia. I am a security officer and was consistently being "arrested" on my way to my place of employment at a "booze bus" roadblock right outside of the main gate. One day I had had enough and asked the "arresting" officer why I had been arrested. He insisted that I wasnt. He insisted that I blow into a "breath tester". I refused consent as I was "arrested" I didnt have to do anything. They cuffed me and took me to the station . I suffered physical injury from the cuffs. I refused to speak to them as I was under "arrest". I went to the court and challenged their "right" to stop me as in the Australian Constitution I can travel "absolutely" free on any road in the country. I informed them That I would need a "contest" mention date. This was agreed to by the magistrate who really wanted (so it seems) someone to one day stand up in his courtroom and quote the legislation that I did. I quoted Constitutional law and the english bill of rights etc. He said that he was familiar with this and even proferred quotes etc. The Police prosecutor didnt know what i was talking about and asked the magistrate for a copy of his notes. The magistrate smiled , clutching his notes closely to his breast stated "Oh, I think i'll keep these to myself. ( to be continued) |
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