Steve Palmer [00:00:00]:

Alrighty. Here we are. Lawyer Talk Off The Record. They Don't Teach You That In Law School series here with our, our resident law students. We have Bella, and we have Troy. And, the idea this is to take on questions and take on topics that you guys are interested in and then talk about them in such a way that maybe everybody else gets a a little bit of an understanding because they don't teach you everything in law school. They really teach you what questions to ask. Mhmm.

Steve Palmer [00:00:25]:

They give you a foundation to figure stuff out, and that's what we're doing here. We're taking it into the real world, not only the real world out there, but the real world in our law practice. By the way, if you got a topic you want us to cover, you can check us out, lawyertalkpodcast.com, or you can check us out on YouTube, Facebook, I think, or wherever you get your socials. Not TikTok yet, apparently. That's been

Bella Mata [00:00:45]:

We're still good now. It's back.

Steve Palmer [00:00:46]:

Oh, TikTok's back. Okay. Yeah. Yeah. It shows you what I know.

Bella Mata [00:00:49]:

For, yeah, for 90 days.

Steve Palmer [00:00:50]:

For at least 90 days more. But, check us out in the socials. Leave us a comment. Suggest a topic, and we'll do our best. Or if you've got some follow-up to what we've talked about here, then feel free, to offer your input. I'm happy to listen to it, and I'm happy to respond. And if it's good enough, you think it's if you think you got the chops to send it to the table here, we'll kick it around here. But anyway, we had a question, guys.

Steve Palmer [00:01:10]:

And I'm I'm sort of usurping us. Use usurping. I'm I'm asking a question today. I'm bringing the topic today. But we talked about this a little bit, off the off the air, and it it involved a question we we got from one of our other q and a's in the in the podcast series about whether the guy was actually asking whether the police whether it was okay to ask the police for the cops identification during a stop. And we all sort of thought, well, that's not that. We we were assuming he was asking, do do we as citizens have to give our ID to the police, or do we have to identify ourselves? And, I've I've been asked this question a lot, and it it has to do with a policy. There there's the famous policy of stop, frisk, and, identify or stop identifying, frisk, or stop and frisk, whatever.

Steve Palmer [00:02:00]:

So I wanna ask you guys, what have they taught you about this? Have you had criminal procedure yet?

Bella Mata [00:02:04]:

So I'm in criminal procedure right now.

Steve Palmer [00:02:06]:

And they say

Troy [00:02:07]:

I gotta take it next semester. My 3rd year.

Steve Palmer [00:02:10]:

Well, what what do you guys think? What's the like, how does this work?

Bella Mata [00:02:13]:

Who'd you have for legal writing and research?

Troy [00:02:15]:

Goldson. I was with you. Yeah. We did I feel like I should be an expert at this because we did this, like, the whole 1st year in legal writing, but I don't know. I feel like

Bella Mata [00:02:25]:

we didn't learn about it in CRM, which I thought was kind of interesting.

Steve Palmer [00:02:28]:

In criminal law.

Bella Mata [00:02:29]:

In criminal law. Yeah. Well, we should talk about

Steve Palmer [00:02:31]:

that because criminal law is what there's we in law school, they teach you 2 different things involving criminal stuff. Yeah. The first is called criminal law, and that's more substantive criminal law, meaning what is a crime, what's the what how do you like, what's the elements of a crime? How do you define a crime? Mhmm. And what are the defenses? It doesn't go into actually what happens in a courtroom. Yeah. And then you have criminal procedure, which is exactly that, what happens in a courtroom. But even that should be broken down into 2 sections, and I don't think they teach in law school like the Ohio criminal rules of criminal procedure at all. But the criminal procedure is more the constitutional stuff.

Steve Palmer [00:03:07]:

As a good friend of mine once said, it's what the bastards can't do to you. You know, it's like, if what your rights are, what what your protections are against the governmental prosecutions. So meaning the 4th amendment, the 5th amendment, the 6th amendment, even the 8th Amendment, the these constitutional protections we have. And then you have, like, the other side, the nuts and bolts criminal procedure. What's an arraignment? What happens in arraignment? What's a preliminary hearing? What, what are pretrials? You know, those are those are things what are discovery rules? Those are things that are more nuts and bolts written in local rules.

Bella Mata [00:03:40]:

Mhmm. And whenever we were in legal writing research, obviously, Terry was it Terry v. Ohio brought up like kind of this gray area of where cops can just stop and ID you and frisk you. Like it it basically created this big what if gap. Like it depends as we always say. Like that that's how I interpret it. So there's like now it gave more power to the police pretty much to just stop and ask us IDs. That that's how I viewed it.

Bella Mata [00:04:06]:

I don't know if that's, like, the credit. I don't know how you got for got from class.

Troy [00:04:10]:

Yeah. I think they just needed, like, some type of reasonable suspicion.

Steve Palmer [00:04:15]:

Mhmm. What's reasonable suspicion?

Troy [00:04:18]:

Like, almost like probable cause.

Steve Palmer [00:04:21]:

Almost like probable cause. This this is great stuff. You guys haven't had a current procedure yet, so you don't know this stuff. But, you know, it's, is these are hard topics to really kick around, But they're they're we've talked about before this notion of of statutory law, things that are written down in this in the books, like the high revised code or any your state's revised code. And then you have constitutional provisions or standards. And what the US Supreme Court's job since Marbury versus Madison anyway is to is to balance or, compare one to the other. So if a criminal statute violates a constitutional provision, then they can strike down that statute, and it's unconstitutional. But the the criminal statute, if it's not consistent or gives more guidance or maybe broadens your constitutional rights, it can do that.

Steve Palmer [00:05:10]:

It just can't go too far to limit constitutional rights beyond what the constitution would say. And both those things are at play here with with this topic because there are states, that have implemented policies and even written laws on stop and frisk or stop and identify. And they ultimately get measured by a standard, like you said, Troy, under Terry versus Ohio. One thing you'll note, anybody who is a scholar of criminal procedure, it seems like there's an inordinate number of cases coming out of Ohio. So it's like Ohio makes it big again in not such a good way. And there are usually things like, there's first amendment cases, that came out of Ohio, Brandenburg versus Ohio, then you got Terry versus Ohio. You've got Bergammer versus McCarty, Another case that came out of Ohio involving, traffic stops and and, clients, or a defendant's, 5th Amendment rights after a traffic stop. There's just a bunch of them.

Bella Mata [00:06:03]:

So Ohio against the world.

Steve Palmer [00:06:04]:

It's Ohio versus the world. That's right. I like to take these topics and sort of turn them into the real world experiences that we have lived. Now you guys may be a little young to remember, Rudy Giuliani in the New York scenario. Is that any of that ringing a bell? He's the

Bella Mata [00:06:23]:

guy that had, like, the hair product, like, steaming down. I mean, he was sweating. Right? Do you guys know what I'm talking about? Yeah.

Steve Palmer [00:06:28]:

Yeah. Okay. He's, so, Rudy is now known for the, with his association with Donald Trump. But, you know, back in the good old days, he was, an assistant United States attorney, I think, and eventually became elected to the United States attorney's office out in New York, and was one of the guys credited with bringing down the mafia. And then he was eventually elected as mayor of New York. New York back in the seventies, I remember going there as a kid and with my dad, but I, you know, I I don't remember much, but I remember sort of the hucksters on the road on the corners playing 3 card Monte and and and, the shell game and all that stuff. And I remember just my dad saying stay close to me as we walk through New York City. I mean, it was a dangerous place to walk.

Steve Palmer [00:07:13]:

They had things like, you guys ever had your windows like, the window wipers?

Bella Mata [00:07:16]:

Like, somebody come up and try and clean my window?

Steve Palmer [00:07:19]:

Yeah. I I haven't.

Troy [00:07:20]:

No. I haven't.

Steve Palmer [00:07:21]:

Alright. Well, that's a that was a pretty, it's sort of intimidating. You're at a traffic stop, and these guys come up, and they start wiping your washing your windows, with a squeegee.

Bella Mata [00:07:32]:

And and they want money. Right?

Steve Palmer [00:07:33]:

They want money.

Bella Mata [00:07:33]:

Yeah. I've I've had somebody come up with CDs and be like, yo, man. Here's my mix tape. I'm like, oh, cool. Thanks, man. They're like, alright. Well, are you gonna give me some forgive me your CD? I'm like, I'm like, no.

Steve Palmer [00:07:42]:

I don't know.

Troy [00:07:42]:

It's good.

Steve Palmer [00:07:42]:

Yeah. Yeah.

Bella Mata [00:07:43]:

So here's your CD.

Steve Palmer [00:07:44]:

But it's sort of scary. And a lot of crime resulted from that. I was in, I don't know, Fort Wayne, Indiana, and some guy I was with my family years ago, and somebody wanted to come up as I somehow got lost wherever I was, but somebody was coming up to my window. And I was there, like, I just took off. I'm like, listen. You're not I'm not gonna participate in this nonsense. But, it, you know, it was an intimidating thing. You know, you'd go through Grand Central Station, and it was like prostitution, homelessness, drug trades.

Steve Palmer [00:08:09]:

You go to the subways, it's covered with graffiti. There were they it was just a mess. So early on, somebody, I think a journalist came up with this notion of the, broken window approach to crime. Any guesses?

Bella Mata [00:08:25]:

I'll make it sound like we didn't talk about this a little

Steve Palmer [00:08:27]:

bit earlier. I already explained it.

Bella Mata [00:08:29]:

But it was like we should call the police for every minor issue. So then that way it kind of trickles up if that's right. Like it will it'll start addressing the bigger issues too. Like, we can't just let any minor crime go by because then we're not gonna let anything go by.

Steve Palmer [00:08:43]:

Yeah. The idea is that it's like it's like tip of the iceberg stuff. So if you have no law and order, if you have no, control over even the little things, then the other stuff is out of con just immediately becomes out of control. And, you know, later on, I guess, there was a study going this is highly criticized because it worked. Right? It it like, it it worked. The the broken window theory, if there's a broken glass, you call the police, you address it immediately. If somebody's if somebody's caught, loitering or doing, whatever minor crime, littering even, you call the cops, address it. Somebody gets caught, graffiti on the subway, you call the cops, you address it, and and you charge these people, and you arrest these people.

Steve Palmer [00:09:22]:

Well, quickly, it sort of becomes overwhelming for the police. It became a little bit overwhelming for the courts. I guess there were even some public courts created to deal with this kind of stuff, but it worked, or at least crime drops. Now some on the political divide might say that that was because, generally, as a country in the eighties, economically, the the rising tide sort of raised all the boats. You know, everybody did better in the eighties, so economically, people were better. So that automatically sent crime down, and they would discount the effectiveness of the broken window policies. And the problem with this and there's even quotes about this because you can imagine where the police would and this this also created some neighborhood policing, like ideas of cops just on the streets. And, you know, they went to the poor neighborhoods.

Steve Palmer [00:10:13]:

They went to the black neighborhoods. They went to the neighborhoods where the crime was. And the criticism was it was it had racist, desperate outcomes. So more black folks, minority folks, Hispanic folks were charged with crimes as a result of these policies. And, you know, on the one side, they would say that is, targeting minorities. On the other side, they say, well, we're going where the the crime is. You know, it's just a fact, and it's sad, but it's true. And maybe both became you know, as you look back, there there were instances of bad cops using these using this for racist reasons or or at least it looks that way.

Bella Mata [00:10:52]:

I feel like I could entertain that it was a little bit of both, I imagine. I mean, there's not not every cop out there is perfect, but I imagine most of them are trying to just do their job. Yeah. So I'm Right. I don't know. And but the broken window, it makes sense to me. I mean, I I don't know.

Steve Palmer [00:11:06]:

Well, there was a study later. Like, I I mean, like, in the last 10 years maybe. So I think somebody overseas, maybe Denmark's Finland or something. I read an article earlier. And I this is sort of fascinating to me. They they they, they created a mailbox. And in the mailbox, they had an envelope. And in an envelope was €5 or Euros or something money.

Steve Palmer [00:11:28]:

And, they watched. The mailbox was open with the envelope, and they they monitored normal folks as they walked by, and they counted how many people actually took the money versus looked at it and put it back. 1 they did it 2 controls. 1 of them had a mailbox that was covered in graffiti and a bunch of junk in it, and another was a very clean neat looking mailbox with nothing else in it. And the mailbox with a bunch of junk in it covered in graffiti, it was overwhelmingly more people stole the money or took the money than the opposite. So the idea is that if if things are orderly, you're less likely to engage in criminal behavior or at least questionable behavior. I don't know if that's a I don't know if that's a parallel.

Bella Mata [00:12:09]:

So, like, I'm

Steve Palmer [00:12:10]:

You're criminologist and sociologist. That that's beyond my realm.

Bella Mata [00:12:13]:

Our mailboxes here are just different because in my head, I I can't look what's inside a mail box. That's why I like

Steve Palmer [00:12:17]:

I think they I think they left it open.

Bella Mata [00:12:19]:

Oh, okay. Because in my head, I'm like, I'm before is everybody just opening their mailbox? I was like,

Steve Palmer [00:12:23]:

it sounds like it's private. So It's like a can of camera thing where they you know, there's a I saw on on YouTube the other day, there is somebody had set something up where it looks like a kid had been kidnapped and swept into an alley, and they were monitoring how many people would stop and help. And it was something like that, I think.

Bella Mata [00:12:40]:

Yeah. Little bystander effect.

Steve Palmer [00:12:41]:

Yeah. Bystanders. Yeah. That's nice. You know, there's that's been sort of popular on YouTube in in various places. But I I think it's been overwhelmingly proven or at least satisfy I'm satisfied that it works. You know? It it it community policing worked. It cleaned up New York, and, like, literally turned, like, Bryant Park and some other areas that I'm not really familiar with.

Steve Palmer [00:13:02]:

I've read about it. It's like they went from, like, total mayhem to family places.

Bella Mata [00:13:07]:

When you say community policing, are you saying, like, anybody on the street like me can, like, police it?

Steve Palmer [00:13:12]:

No. Although that's an interesting question. See, when I was a kid back when this stuff was going on and I the the like, when the streets were deemed unsafe, there was some of that going on. There was this group of dudes called the guardian angels. I'm serious. Google this. And these guys walk around with little red beanies in their little uniforms, and they were, like, vigilante cops taking on because the police weren't like, the government wasn't doing it. And, so the guardian angels emerged, I think, in some of the bigger cities.

Steve Palmer [00:13:41]:

Really sort of fascinating stuff.

Bella Mata [00:13:43]:

I'm cool with that, but what happened in Florida, like, maybe, like, 10 years ago? What was the case? Community watch guy shoots a kid.

Steve Palmer [00:13:52]:

Oh, yeah. You asked me too fast. But I know the everybody knows the case. Yeah. Jose Lopez represented the guy, the lawyer down there.

Bella Mata [00:13:59]:

Yeah. And it's just the problem I have is the whole community policing. Like, I would like it to be done, but it can't be done to, like, that extent. I'm like, you can't see it.

Steve Palmer [00:14:06]:

I mean, yes and no. But by the community policing I'm talking about is cops on the corner. Okay. Police on the street. A presence. And, you know, this became sort of, a policy and a practice where police would just hang out in the bad neighborhoods. And they even got to know the guy the dope dealers on the corner, or they got to know who the criminals were and almost like in a cat and mouse joking type of way. But their presence sup suppressed crime.

Steve Palmer [00:14:36]:

So that that's the this idea of community policing. So it's gonna be less likely somebody's gonna throw a brick through a window if a cop's standing there. And if they're not gonna do that, or if they're worried that a cop is gonna come approach them, it's gonna be less likely they've got a gun in their pocket because they know the last time or their buddy who was approached by a police officer got frisked and had a gun in his pocket. So now they're not gonna do it, like the the like, that's the theory. Well, back to New York, they created this idea that, we're gonna stop, frisk, and identify. Alright. Well, that sounds great. So you just go up to people stop.

Steve Palmer [00:15:09]:

But on the one hand, it sounds like, yeah, that would be very effective. On the other hand, I'm thinking, like, jack boots and brown shirts from Nazi Germany. You know? I I've always said, you can make these streets completely safe. If you wanna eliminate all crime, it's really easy. You just flood the streets with cops and suspend your 4th amendment rights. There won't be any crime except for the government crime. Right? Except for the corrupt police officers and the corrupt government. And that's the problem.

Steve Palmer [00:15:33]:

It's there's all freedom comes with a price, and the price is safety. So if you know, we could all be perfectly safe if we give the government total control to stop this stuff by any means, martial law, except we're not safe from the government actors. That's the problem. So somewhere in the middle is the balance, and that's why America is so unique. At any rate, the stop and frisk laws were all tested against the 4th Amendment, and that is, as you brought up, Terry versus Ohio. So let's talk about Terry real quick. Terry says that the police can stop and detain a suspect if do you remember the standard?

Bella Mata [00:16:20]:

Reasonable suspicion standard?

Steve Palmer [00:16:22]:

A reasonable suspicion that criminal activity is afoot. What the hell does that mean?

Troy [00:16:32]:

A crime is about to be committed? Or

Steve Palmer [00:16:35]:

Yeah. I mean, it's it's like this nebulous. It sounds awesome. So a lot of times, a lot like these standards are we they they're just designed to put a label on them so then we can hash it out. I mean, I I don't know.

Bella Mata [00:16:44]:

I I just view it as, like, they set the standard as low as possible. So then it kinda just, like well, all the cops were meeting this bare minimum standard almost.

Troy [00:16:53]:

Like It's a lower standard than probable cause. Right?

Steve Palmer [00:16:56]:

Right. So what you have on this on this continuum is you have something called reasonable say you have nothing. No just a guess. Mhmm. A hunch. An inarticulate hunch is what is not reasonable suspicion. So sometimes we define stuff in the negative. So that's the that's as low as it goes.

Steve Palmer [00:17:10]:

You've got nothing. You're just pulling you just I don't like the way Troy looks over there. I don't like that sweater. My mom got for it. Why don't you come here and wait right here, and you're not allowed to go anywhere until I do what I'm gonna do, until I investigate you. Alright. That that's that's no suspicion. I just I don't like you.

Steve Palmer [00:17:27]:

And that's what we're trying to protect against. That's the balance. Like, we don't want the police to have that because the cop could be your sister's ex husband and doesn't like you from some Thanksgiving fight you had. You know? So now he's gonna take advantage of it. I don't think that crap doesn't happen because it can. Then you have something the next on the the next notch on the poll would be a reasonable suspicion. So you have to have some sort of reasonable and articulable suspicion. You have to point to certain facts that would justify your conclusion that criminal activity is afoot.

Steve Palmer [00:18:03]:

A guy standing on a corner, pulling something out of his pocket, handing it to somebody else, taking money back, putting something in his pocket. I mean, that's sort of the classic reasonable suspicion. Like, yeah, look. I've been I've been a cop for a decade. I've watched these streets. I've seen plenty of dope deals. That's a drug deal. Is it are you sure? No.

Steve Palmer [00:18:23]:

I'm not positive, but I'm reasonably sure that that's a dope deal, and I can point to facts that would justify that. Then you have something called probable cause. And so hold on. We should the the continuum then is, because of reasonable suspicion, the police are allowed to conduct a limited detention. What the f is a detention? Well, I don't know. It's something less than an arrest, but more than nothing. So I've detained you, meaning you're not free to leave. And ironically, the rest is sort of the same standard.

Steve Palmer [00:18:55]:

You're not free to leave, but, you know, you guys figured out. But a detention, a limited detention, for purposes of investigating the criminal activity afoot. Sometimes that can that can sort of mushroom into a little bit more. So I have that reasonable suspicion. I see, Bella making a what I think is a dope deal. I say, Halt, You don't go anywhere, young lady. You stay right there. That, you know, any reasonable person in your shoes would think, I'm not free to leave.

Steve Palmer [00:19:25]:

I better stay there. Now, of course, all the kids on the road are taken off, but and then they give chase, and that causes all sorts of other issues. Let's say you stop, and now I I, as a police officer, approach, and I see a, what I think is a, the handle of a knife sticking out of your purse, or, or maybe on a side a bulge where somebody would normally have a sidearm, and I think, that looks an awful lot like a weapon. Now I might have reasonable suspicion based on those additional facts that I didn't first see, or maybe I did see a gun before, and I didn't see you drop it. So now I have suspicion to not only detain you, but maybe conduct a limited pat down.

Bella Mata [00:20:06]:

A frisk. Right?

Steve Palmer [00:20:07]:

A frisk. I can frisk you. And, now there's all sorts of rules about this. I mean, I can't I can't look for an elephant in the shoe box, you know. I'm not allowed to

Bella Mata [00:20:15]:

You can only, like, grab and, like, squeeze. Right? No.

Steve Palmer [00:20:18]:

I like

Bella Mata [00:20:18]:

I didn't say, like not not like anywhere, you know, but, like

Steve Palmer [00:20:21]:

The grab and squeeze. Right. That they they they definitely did not teach you that unless No. So the grab and squeeze. But they can do a pat down, they find a gun, and now now they have they have probable cause to arrest you. So reasonable suspicion is something less than probable cause and warrants a detention that is something less than a full blown arrest. Probable cause are is facts that would any reasonable person would believe that a crime has been committed, and now you have probable cause. And again, that's a nebulous standard that's hard to delineate, but now you have probable cause, and I can conduct a full blown arrest, or I can search things like your purse, because I have probable cause to think that there might be something in a closed container.

Steve Palmer [00:21:03]:

Why? Because I've watched Bella stick a gun in her purse from across the street. That's more than a reasonable suspicion, and it's more like probable cause. And then you get to beyond that. Once you're arrested, you have these other things, like, proof beyond a reasonable doubt and other standards. But those are sort of the the street standards of all this crap. So it gets really confusing. So say you have a law that says the police are allowed to stop and ask for identification any citizen they want. What say you guys to that?

Bella Mata [00:21:34]:

Well, I feel like there still has to be some standards that I'm just coming up to anybody. If not, they just stop anywhere and be like, hey, you you you and just get in line. Everybody in line, I'm just gonna ID everybody. Right. There there has to be some standard.

Steve Palmer [00:21:46]:

So you've got the the law, the written law for, say, New York City or some other city. And then you've got the constitutional issues, like the 4th Amendment as interpreted by Terry Versaio back in 68 1968, I believe. Sounds right. Sounds right. So the law, and then you got Terry and the 4th amendment. The law says, I can stop as a police officer, whoever I want. I I can stop Bella whenever I want to and ask her for identification. Where what's the analysis? She's on the spot.

Troy [00:22:26]:

Wait. What was the question?

Steve Palmer [00:22:27]:

I'm a police officer. I'm a police officer, and the law says I can stop and ask you for identification.

Troy [00:22:34]:

Don't they have to have certain grounds to be able to pull you over?

Steve Palmer [00:22:37]:

I'm not talking about car stop. You're walking on the street. But a car stop would be similar.

Troy [00:22:42]:

Well, then that's where the reasonable suspicion comes into play. Right?

Steve Palmer [00:22:46]:

Yeah. I have to have some reasonable suspicion because the stop itself is a detention. It is saying, you're not free to leave. I wanna see your ID. So the first problem is the detention. The second problem is do you have to identify yourself? And, you know, you you have to pass the Terry test first. And if you pass the Terry test, mostly the Supreme Court is saying that's okay. So the there was a couple big cases on this.

Steve Palmer [00:23:07]:

Terry obviously was 1, Hybel versus the 6th judicial district out of Nevada. That was in 2004. These are US Supreme Court cases where they're they're quoting Terry and upholding the the stop and identify statutes if they're applied in such a way that requires reasonable suspicion. But if they're applied in a way that does does not require reasonable suspicion, Now they've now they've gone beyond the bounds of what the 4th Amendment will permit.

Bella Mata [00:23:36]:

I feel like a big problem I see with this ID issue and the reasonable suspicion is I see a lot of videos on I'm I'm I'm I'm a fall call for 2. It's like watching the YouTube and TikToks of, like, police interactions. A lot of times these people will get asked for their IDs and then they'll turn and ask the cop, like, why are you asking for my ID? And the cop will be like, because I'm asking for it. Like, they're not it it's almost like the because I'm your dad. I'm your mom. Like, you just gotta listen to me. It's

Steve Palmer [00:24:01]:

like Right. This has caused look. These are power the these are power struggles. So if a cop comes up to me at random and says, I want your ID. Look. I don't like that. So, you know, I I don't like that. And I'm gonna say no.

Steve Palmer [00:24:19]:

And not just to be an asshole, but because I don't like it. I don't like it. And for I'll give you an example. I was going into a courthouse. I'm not gonna say where, but it's a courthouse. So you have a government actor. And I'm an attorney. I've been practicing law for my for since 95.

Steve Palmer [00:24:35]:

And this the metal detector guy at the front of the courthouse door says, how can I help you? What's your business here? And I just stared at him. And he got pissed. And I'm just staring at him. And I was just I wasn't wasn't in a great mood. I mean, the easy thing for me to do there would be, like, oh, I got a case. It's up in judge, whatever. And I'm just gonna go up there and whatever. And they'll look on their docket and say, okay.

Steve Palmer [00:24:58]:

Yeah. It's 2nd floor. But that day, I was just, like, why the freak do you wanna know that? Don't I pay for this courtroom or this courthouse? Is it my tax dollar? I mean so, you know, I can understand on the one hand why they're asking because they're trying to keep everybody safe and secure. I can also understand from my perspective. It's like, it's none of your damn business, dude. Why why you ask such a question? I'll put my stuff through your metal detector. I'm not carrying any guns, knives or weapons. Let me in the damn door.

Steve Palmer [00:25:26]:

It's a public this is public. I could say no to that. Or I could just look at them and not answer that question. And if I wanna push that to its extreme, it's gonna get really awkward. It's gonna turn south. And then what happens is these videos you see on YouTube. Right? These these guys say, why do you wanna know? Because I can. Why can't you? Like, I'm allowed to be here.

Steve Palmer [00:25:47]:

Yeah.

Troy [00:25:48]:

Yeah. And And like, that just causes more issues.

Bella Mata [00:25:51]:

I I I agree. I think they're just making it harder. And then the other day, if a cop's like, let me see your ID. I'm just

Steve Palmer [00:25:55]:

Right.

Bella Mata [00:25:56]:

I might just say, like, can I ask why? And then just literally hand it to him. Like, what what's the deal? If they can't give me a deal, I'm like, alright.

Steve Palmer [00:26:03]:

If you're not doing it so the look. If the police then say because I have a reasonable suspicion they don't even have to say this, but the the standard is, do the police have a reasonable suspicion to approach you and detain you? Because asking you to stop there and produce an idea is a detention, then they have to be able to justify that. Now this the you have to ask what the remedy is. Let's assume that the police have violated your constitutional rights, and we'll wrap it up with this. So in in our scenario or your scenario, they, the police did had no reason to ask you for that ID, or ask you to, produce your ID. But you do anyway. And then as you produce your ID, out drops a couple crumbles of meth. Oh.

Steve Palmer [00:26:46]:

Well, step

Bella Mata [00:26:46]:

up from my usual Mountain Dew, I guess.

Steve Palmer [00:26:48]:

Right. So it's not just Mountain Dew. You need a little extra oomph to get through the day. So you took your meth, and out it drops onto the sidewalk. And the police is like, oh, well, that's interesting. I'm gonna seize that. Now you're under arrest. Please turn around, put your hands behind your back, and now you're charged with a felony drug possession charge.

Steve Palmer [00:27:06]:

But the initial approach was unconstitutional. It violated Terry. They said, look, there's no reason to approach you. They just didn't like the way you looked. And lo and behold, they, out comes a crumble of crack cocaine or methamphetamines, and you can see how in New York this would happen. So they would say, look, you're only targeting me because I'm black. You only did this. You only came up to me because I have a skin color, or I'm a certain race, or you don't like me.

Steve Palmer [00:27:32]:

And the cops would have to justify that under the 4th Amendment, and say, look, I watched this guy. I watched Troy over there have a transaction with Bella about 10 minutes ago. So I had a reasonable and articulable suspicion that's criminal activity might be afoot. That'd be fine. But if the police can't articulate that, if there is no evidence of of any sort of criminal behavior afoot or any facts that would lead to that, now they violate your 4th amendment, and what happens to the dope?

Troy [00:28:00]:

It can't be used in court. Right?

Steve Palmer [00:28:02]:

Yeah. It's something called the exclusionary rule. There's a bunch of case I'll go in back, but Wong Sun, which is an old, I think, Chinese

Troy [00:28:09]:

Is that the fruit of the poisonous tree? Is that what

Steve Palmer [00:28:11]:

you're saying? Fruit of the poisonous tree. Yeah. So that and that's sort of because it's not just the dope they found not just the dope they found, but anything anything that naturally flowed from the constitutional violation, is all fruit of the poisonous tree even if they could have found it later. But anyway, there's which is not necessarily true. There's something called the inevitable discovery rule, which this we could go for days on this. But now the the remedy then is you file a motion to challenge the admissibility evidence. We call it a suppression motion or a motion to suppress and say, look, officer Doolittle over there violated my client's constitutional rights, searched Troy without a warrant, and there was no reasonable suspicion. Therefore, it violated the 4th amendment under Terry versus Ohio.

Steve Palmer [00:28:52]:

And I'm I'm asking the court to throw the dough pad. You're not allowed to use it at court. Now they don't they can't prosecute you because they don't have the drugs to use and rely upon to prove the actual possession case. There's another remedy. And Scalia famously, or maybe not so famously before he died, was sort of hinting around at this. That look, the exclusionary rule is completely prophylactic. We invented it. The the US Supreme Court invented it.

Steve Palmer [00:29:14]:

There is no basis for this in the constitution. So if you pull out your little pocket constitution, look in the 4th amendment, it just says you'll show you they can't they have to have a warrant to search you, basically. It doesn't say if they search you without a warrant, then they're not allowed to use the evidence against you in court. That was totally made up by the US Supreme Court.

Troy [00:29:36]:

Just to deter the police.

Steve Palmer [00:29:38]:

Yeah. As a as a deterrent or consequence, the same is true with Miranda. I'm not mad they made it up. Well, some people, like, you wonder, you know, and Scalia said and I didn't agree with his logic. He's like, well, back in the day when police were corrupt, we this this we needed this rule, but no longer is it necessary. I'm like, yeah, bullshit. You know? It's like, no. But there is another way to redress it.

Steve Palmer [00:30:01]:

It's called a civil rights act or a civil rights lawsuit. So you can sue the police, in 9 in section 19 3 of the United States code for civil rights violation. And I wondered, you know, if if the Supreme Court hadn't invented the exclusionary rule, would there have been some other mechanism that emerged that made that that resulted in something similar or deterred the police just as much, if not more? And the answer is maybe. We'll never know. Yeah. But there has been some on that side of things, on the Scalia side of things to get rid of the exclusionary rule because it's not constitutional. It doesn't have a base in it was made up. And, you know, that's the same with, Miranda warnings.

Steve Palmer [00:30:38]:

You know, there's nothing in the 5th amendment that says the police shall read this thing to you. But but now it's Supreme Court constitutional law. So anyway, that was fun. But this tells you why this tells you, like, what the police can't do. This is why I love criminal procedure because what they can't do to you. Yeah.

Troy [00:30:58]:

I feel like I learned more in this, like, 15 minutes than I did the the 1st year we did this in legal draft night.

Steve Palmer [00:31:04]:

It's because you're not supposed to learn anything in law school. You're just supposed to learn that you don't know anything, and then you can go look it up.

Troy [00:31:09]:

I just felt like I couldn't get a straight answer in that class. No. Like, I would ask questions, and she was like, well, why do you think it's that way? I'm like, well, I'm asking. I don't know.

Steve Palmer [00:31:17]:

Right. So these little these little parts of your brain that have never moved are starting to, like, slowly churn. Like, why do you think I have to think about this? And then you start to think, well, what would the reasoning be? And when you learn to connect those dots, it it opens up a whole depth of understanding of the world that you would know. This is why the law school education is great. This is why Socratic method is awesome. Because it it it creates links in your brain or channels of your brain that don't exist, and it teaches you how to think. So why would that be? And then you could then you can start to reason through these things and make good arguments later that are yours alone. So alright.

Steve Palmer [00:31:55]:

Well, they don't teach you that in law school. I can tell you that. They make it hard on you in law school and make you learn it on your own, like we're doing right here at the table. This is lawyertalkpodcast.com, where you can suggest topics, you can ask questions, or you can just interact. I got a I got a favor. If you guys are enjoying the content, why don't you subscribe? If you're on YouTube, subscribe. If you're in the podcast world, just hit the subscribe, and download the content, share the content, comment on the content, like the content, and we're gonna keep bringing it at you, week in week out. Lawyer Talk podcast off the record on the air, at least until now.