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The real root of this sort of issue is how the courts treat the standard of probable cause. It's supposed to be that the evidence presented is proof of a crime

The real root of this sort of issue is how the courts treat the standard of probable cause. It's supposed to be that the evidence presented is proof of a crime (but not as far as beyond reasonable doubt, but just that the 1 sided evidence supports it). Instead they often use the lower standard of reasonable suspicion. As an example, a bag of white powder cannot meet the standard of probable cause by itself. Maybe if the person holding it had a record of trafficking, or something like that. If the instant tests have a 90%+ accuracy rate, then that should be enough for a warrant to seize and test the substance with an high accuracy test. But I would contend that without other evidence it shouldn't be enough for a custodial arrest. But none of this really matters because the judges are not impartial. They want to think of themselves as good guys, and they think of the cops as good guys. So of course they automatically side with the cops. Or as we in civil things like red flag laws, they generally ignore the "more likely than not" standard to "err on the side of caution" by issuing them almost by default. Absolutely insane that they get away with this, especially the ones who admit it.

pixl97 3y ago
>But none of this really matters because the judges are not impartial. Of course they are not impartial, in the US they are elected. If you're not "tough on crime" you're getting replaced next election.
- devilbunny 3y ago
  Varies by jurisdiction, and not true in any federal court.
- giantg2 3y ago
  Appointed ones aren't really any better. They all have biases. The system is just built in a way that they are untouchable. How do you control someone who you have no recourse against? Perhaps the elected ones have the most accountability, even if it forces those biases to be more present. Even things like judicial conduct complaints are considered so secret that you can't subpoena them even if they contain exculpatory evidence. Judges are able to be sued (at the state level anyways) and investigated on civil rights and color of law violations. It just doesn't seem to happen. Even something like admitting in a red flag hearing that they are erring on the side of caution is a violation. Yet nobody cares to investigate or pursue it.
- zo1 3y ago
  Except in certain states, where "tough on crime" has been replaced with "tough on some crimes, and everything else small-ish gets a free pass, because hey, too many black people in jail or something." Low effort response, but seriously reading about this non-sense in the USA I'm wondering why you guys even have laws in the first place. Either have them and enforce them, or get rid of them via democratic means. Right now it seems like you have the worst of both, and real people get stuck in the middle.
  - giantg2 3y ago
    Some people do want to reduce the laws on the books. That's very difficult to do, especially as more laws are passed every year. Most people are indifferent because the laws don't affect them. Why should they care when they can benefit from selective enforcement? Everyone speeds and then only a couple people get upset that they got a ticket because they're the only ones caught.
  - zopa 3y ago
    Nowhere anywhere ever has perfectly and strictly enforced all its laws, or even come particularly close. Prosecutorial discretion isn't something the US invented.
  - HideousKojima 3y ago
    >Right now it seems like you have the worst of both, and real people get stuck in the middle. Also commonly called "anarcho-tyranny."
  - digging 3y ago
    > I'm wondering why you guys even have laws in the first place. In many cases, we have them for the specific purpose of criminalizing nonwhite people and political dissidents.
tantalor 3y ago
> red flag laws... issuing them almost by default Do you have any evidence of that, or are you just making stuff up.
- giantg2 3y ago
  I should have made it more generic and said orders of protection to include the more traditional orders as well. The process is well known to be abused, especially during divorce proceedings. These processes do not include the protections found in criminal law and result in lower burden of proof, ex-parte hearings, and no right to an attorney. It's hard to find data on a lot of this. If you talk to divorce attorneys, they will tell you it's common. Here are some stats on my state. The initial order is granted, typically ex-parte, 89% of the time. Only 18% are granted a final PFA. Almost half of all cases are either withdrawn or an no-show. These are some abysmal numbers. They are granted readily and the vast majority don't stand up when challenged, even considering the lower burden of proof. I can't did the article, but there was a retired judge that openly admitted to approving most orders because the cost for being wrong was too high. https://www.pacourts.us/news-and-statistics/news/news-detail/1084/a-closer-look-at-protection-from-abuse-orders-in-pennsylvania https://www.pacourts.us/news-and-statistics/news/news-detail... One estimate that every 10-20 seizures saves one suicide. So clearly not living up to the more likely than not standard, or we would expect to see a closer to 50% result. This study also notes that the rate of firearm assault was too low to assess crime against others. You can also see some of how the process works without the protections on the criminal justice side (prosecutor statements). https://scholarship.law.duke.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=4830&context=lcp https://scholarship.law.duke.edu/cgi/viewcontent.cgi?referer...
  - tantalor 3y ago
    Thanks! Great resources and well explained
  - jcranmer 3y ago
    > One estimate that every 10-20 seizures saves one suicide. So clearly not living up to the more likely than not standard, or we would expect to see a closer to 50% result. But that's not the standard. The thing you're trying to prove generally isn't "is going to kill themself with 100% probability," but "is at risk to kill themself or other people", an unquantified metric but one for which a 10% chance isn't entirely unjustifiable for an intervention. It's that level of risk for which you would want a "more likely than not" scenario to reach 50% probability of demonstrating; if you multiply the two numbers together, your expected avoidance should be far lower than 1 suicide per 2 seizures.
reaperman 3y ago
Also absurd that smelling marijuana, either by human LEO's or K-9's, is still considered strong enough evidence to search. And finding anything that appears to be marijuana or a THC product is enough to arrest someone. The reason this is absurd is because Delta-8 THC, THC-A, and CBD marijuana is legal as long as they have low enough levels of delta-9 THC. The bud will look and smell exactly the same as marijuana flower with high levels of illegal Delta-9 THC. So the observation of marijuana (sight or smell) shouldn't be considered to "probably" be the illegal version today. If anything, in states where delta-9 THC is illegal, a bag of marijuana flower is far more likely to be one of these legal versions, because they're for sale at every fucking vape shop. It blows my mind to see QP's of marijuana just sitting in jars on the counter at every vape shop in Texas. Which also means that K-9's should have to be replaced with new K-9's that aren't trained to smell or "indicate" on marijuana because they can't distinguish between legal THC-A weed vs. illegal delta-9 weed. So their "indication" can't be considered a reliable piece of evidence when they still indicate on legal material. But as you said, courts are very very hesitant to limit the powers of the police. Also the idea that due to the "Farm Bill", vape shops can legally sell packages containing many grams of delta-9 THC in the form of gummies/etc but still can't sell plain old delta-9 marijuana, is completely and utterly absurd. I'm glad that prohibition is easing up, but the inconsistencies in the current transitory phase are beyond ridiculous.
- timcobb 3y ago
  Also absurd is arresting people for consuming marijuana
  - toasted-subs 3y ago
    They just want an excuse to bully people. I don’t like what you do in private so let me make your life unbearable until you stop.
- itsoktocry 3y ago
  >If anything, in states where delta-9 THC is illegal, a bag of marijuana flower is far more likely to be one of these legal versions You don't actually believe this, do you? Marijuana is incredibly abundant everywhere I've ever been, legal or not. I'm Canadian, weed is legal here. I think it's insane people can get locked up for it. I toke on occasion myself. But if you get pulled over by the police and your car smells like dope, I'm a-ok with that being the bar of suspicion for a DUI. If you're the 1 in 1000 smoking pure CBD, I suppose you have nothing to worry about.
bostonsre 3y ago
Is it common for people to carry around baggies of white powder that isn't drugs? The container might tip the scale one way or the other. If there is a little white substance at the bottom of a dunkin donuts bag, I'd err on the side of not being enough for an arrest if it flags as positive since it is more than likely powdered sugar, but if its in a little baggies that are commonly used for distribution, I'd probably say that would be enough.
- rpmisms 3y ago
  When I was a teenager, I would carry around small baggies of baking powder, just in case I got arrested for something. I enjoyed trouble a bit too much, although never enough to actually get arrested.
  - LorenPechtel 3y ago
    I've been tempted to put a folder of kitty porn on my computer. Exactly as labeled--cats having sex.
    - rpmisms 3y ago
      Make sure to label everything by the age of the cats involved, too.
  - hoten 3y ago
    I would be immensely paranoid that an arresting cop would find this somehow personally offensive, and replace my joke cocaine with real cocaine.
- reaperman 3y ago
  I carry around ziplock bags of unflavored protein powder pretty much everywhere I go, as well as creatine powder. Both of these can look very similar to large amounts of cocaine, heroin, MDMA, 2C-B, MDA, or methamphetamine...especially the bags of creatine crystals.
- ceejayoz 3y ago
FireBeyond 3y ago
> But none of this really matters because the judges are not impartial. I was lingering around in court waiting for a small claims case related to my stepdaughter in a car accident. I present this not as a counterargument to your point, but an agreement. That to me, this exchange was so notable that it stood out in my mind because it should be the norm. It was at a hearing to revoke bond and other conditions of pre-trial release: Prosecutor: waffles on about other details before... In addition, Mr Defendant has also done or said nothing that indicates him taking any responsibility for his actions in this matter... Judge, interrupting: I'm going to stop you there. Mr Defendant has plead not guilty in this matter and has not been found guilty by a jury of his peers. In the eyes of this court, he has zero obligation at this point in time to "take responsibility" for his alleged actions, and the court will not be considering that in reviewing this order.
- giantg2 3y ago
  Haha I wonder how many other judges this prosecutor has gotten away with that. If we're sharing chuckles, I once had a magistrate say "I'm not prejudiced" in response to a request to dismiss with prejudice.
  - Two4 3y ago
    Does that mean the judge grants the dismissal, but not with prejudice?
    - giantg2 3y ago
      With prejudice just means it can't be refiled.
mindslight 3y ago
I'd say the real root is that police and their departments are allowed to harm people and then just wring their hands of the damage rather than ever having to make their victims whole. The harshest repercussion they worry about is having to do extra paperwork. This applies to everything from simple detainment through wrongful arrest and outright homicide. We'd be a lot less outraged if the people arrested with flimsy tests, dog shows, profiling, etc and then later acquitted were ultimately compensated for their time, emotional distress, and legal representation - out of the overall budget for the criminal justice system. This would be a proper accounting for the externalities of law enforcement, rather than the current perverse reverse lottery for those who unluckily fall into their sights.
LorenPechtel 3y ago
The real problem with red flag laws is that they are engineered without any checks. They are the equivalent of a temporary restraining order, but without the short term limit of such.
alfalfasprout 3y ago
Worse, this low standard is used for civil asset forfeiture. So the police can legally steal your assets with next to no legal recourse for you.

pixl97 3y ago

>But none of this really matters because the judges are not impartial. Of course they are not impartial, in the US they are elected. If you're not "tough on crime" you're getting replaced next election.

devilbunny 3y ago
Varies by jurisdiction, and not true in any federal court.
giantg2 3y ago
Appointed ones aren't really any better. They all have biases. The system is just built in a way that they are untouchable. How do you control someone who you have no recourse against? Perhaps the elected ones have the most accountability, even if it forces those biases to be more present. Even things like judicial conduct complaints are considered so secret that you can't subpoena them even if they contain exculpatory evidence. Judges are able to be sued (at the state level anyways) and investigated on civil rights and color of law violations. It just doesn't seem to happen. Even something like admitting in a red flag hearing that they are erring on the side of caution is a violation. Yet nobody cares to investigate or pursue it.
zo1 3y ago
Except in certain states, where "tough on crime" has been replaced with "tough on some crimes, and everything else small-ish gets a free pass, because hey, too many black people in jail or something." Low effort response, but seriously reading about this non-sense in the USA I'm wondering why you guys even have laws in the first place. Either have them and enforce them, or get rid of them via democratic means. Right now it seems like you have the worst of both, and real people get stuck in the middle.
- giantg2 3y ago
  Some people do want to reduce the laws on the books. That's very difficult to do, especially as more laws are passed every year. Most people are indifferent because the laws don't affect them. Why should they care when they can benefit from selective enforcement? Everyone speeds and then only a couple people get upset that they got a ticket because they're the only ones caught.
- zopa 3y ago
  Nowhere anywhere ever has perfectly and strictly enforced all its laws, or even come particularly close. Prosecutorial discretion isn't something the US invented.
- HideousKojima 3y ago
  >Right now it seems like you have the worst of both, and real people get stuck in the middle. Also commonly called "anarcho-tyranny."
- digging 3y ago
  > I'm wondering why you guys even have laws in the first place. In many cases, we have them for the specific purpose of criminalizing nonwhite people and political dissidents.

tantalor 3y ago

> red flag laws... issuing them almost by default Do you have any evidence of that, or are you just making stuff up.

giantg2 3y ago
I should have made it more generic and said orders of protection to include the more traditional orders as well. The process is well known to be abused, especially during divorce proceedings. These processes do not include the protections found in criminal law and result in lower burden of proof, ex-parte hearings, and no right to an attorney. It's hard to find data on a lot of this. If you talk to divorce attorneys, they will tell you it's common. Here are some stats on my state. The initial order is granted, typically ex-parte, 89% of the time. Only 18% are granted a final PFA. Almost half of all cases are either withdrawn or an no-show. These are some abysmal numbers. They are granted readily and the vast majority don't stand up when challenged, even considering the lower burden of proof. I can't did the article, but there was a retired judge that openly admitted to approving most orders because the cost for being wrong was too high. https://www.pacourts.us/news-and-statistics/news/news-detail/1084/a-closer-look-at-protection-from-abuse-orders-in-pennsylvania https://www.pacourts.us/news-and-statistics/news/news-detail... One estimate that every 10-20 seizures saves one suicide. So clearly not living up to the more likely than not standard, or we would expect to see a closer to 50% result. This study also notes that the rate of firearm assault was too low to assess crime against others. You can also see some of how the process works without the protections on the criminal justice side (prosecutor statements). https://scholarship.law.duke.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=4830&context=lcp https://scholarship.law.duke.edu/cgi/viewcontent.cgi?referer...
- tantalor 3y ago
  Thanks! Great resources and well explained
- jcranmer 3y ago
  > One estimate that every 10-20 seizures saves one suicide. So clearly not living up to the more likely than not standard, or we would expect to see a closer to 50% result. But that's not the standard. The thing you're trying to prove generally isn't "is going to kill themself with 100% probability," but "is at risk to kill themself or other people", an unquantified metric but one for which a 10% chance isn't entirely unjustifiable for an intervention. It's that level of risk for which you would want a "more likely than not" scenario to reach 50% probability of demonstrating; if you multiply the two numbers together, your expected avoidance should be far lower than 1 suicide per 2 seizures.

reaperman 3y ago

Also absurd that smelling marijuana, either by human LEO's or K-9's, is still considered strong enough evidence to search. And finding anything that appears to be marijuana or a THC product is enough to arrest someone. The reason this is absurd is because Delta-8 THC, THC-A, and CBD marijuana is legal as long as they have low enough levels of delta-9 THC. The bud will look and smell exactly the same as marijuana flower with high levels of illegal Delta-9 THC. So the observation of marijuana (sight or smell) shouldn't be considered to "probably" be the illegal version today. If anything, in states where delta-9 THC is illegal, a bag of marijuana flower is far more likely to be one of these legal versions, because they're for sale at every fucking vape shop. It blows my mind to see QP's of marijuana just sitting in jars on the counter at every vape shop in Texas. Which also means that K-9's should have to be replaced with new K-9's that aren't trained to smell or "indicate" on marijuana because they can't distinguish between legal THC-A weed vs. illegal delta-9 weed. So their "indication" can't be considered a reliable piece of evidence when they still indicate on legal material. But as you said, courts are very very hesitant to limit the powers of the police. Also the idea that due to the "Farm Bill", vape shops can legally sell packages containing many grams of delta-9 THC in the form of gummies/etc but still can't sell plain old delta-9 marijuana, is completely and utterly absurd. I'm glad that prohibition is easing up, but the inconsistencies in the current transitory phase are beyond ridiculous.

timcobb 3y ago
Also absurd is arresting people for consuming marijuana
- toasted-subs 3y ago
  They just want an excuse to bully people. I don’t like what you do in private so let me make your life unbearable until you stop.
itsoktocry 3y ago
>If anything, in states where delta-9 THC is illegal, a bag of marijuana flower is far more likely to be one of these legal versions You don't actually believe this, do you? Marijuana is incredibly abundant everywhere I've ever been, legal or not. I'm Canadian, weed is legal here. I think it's insane people can get locked up for it. I toke on occasion myself. But if you get pulled over by the police and your car smells like dope, I'm a-ok with that being the bar of suspicion for a DUI. If you're the 1 in 1000 smoking pure CBD, I suppose you have nothing to worry about.

bostonsre 3y ago

Is it common for people to carry around baggies of white powder that isn't drugs? The container might tip the scale one way or the other. If there is a little white substance at the bottom of a dunkin donuts bag, I'd err on the side of not being enough for an arrest if it flags as positive since it is more than likely powdered sugar, but if its in a little baggies that are commonly used for distribution, I'd probably say that would be enough.

rpmisms 3y ago
When I was a teenager, I would carry around small baggies of baking powder, just in case I got arrested for something. I enjoyed trouble a bit too much, although never enough to actually get arrested.
- LorenPechtel 3y ago
  I've been tempted to put a folder of kitty porn on my computer. Exactly as labeled--cats having sex.
  - rpmisms 3y ago
    Make sure to label everything by the age of the cats involved, too.
- hoten 3y ago
  I would be immensely paranoid that an arresting cop would find this somehow personally offensive, and replace my joke cocaine with real cocaine.
reaperman 3y ago
I carry around ziplock bags of unflavored protein powder pretty much everywhere I go, as well as creatine powder. Both of these can look very similar to large amounts of cocaine, heroin, MDMA, 2C-B, MDA, or methamphetamine...especially the bags of creatine crystals.
ceejayoz 3y ago

FireBeyond 3y ago

> But none of this really matters because the judges are not impartial. I was lingering around in court waiting for a small claims case related to my stepdaughter in a car accident. I present this not as a counterargument to your point, but an agreement. That to me, this exchange was so notable that it stood out in my mind because it should be the norm. It was at a hearing to revoke bond and other conditions of pre-trial release: Prosecutor: waffles on about other details before... In addition, Mr Defendant has also done or said nothing that indicates him taking any responsibility for his actions in this matter... Judge, interrupting: I'm going to stop you there. Mr Defendant has plead not guilty in this matter and has not been found guilty by a jury of his peers. In the eyes of this court, he has zero obligation at this point in time to "take responsibility" for his alleged actions, and the court will not be considering that in reviewing this order.

giantg2 3y ago
Haha I wonder how many other judges this prosecutor has gotten away with that. If we're sharing chuckles, I once had a magistrate say "I'm not prejudiced" in response to a request to dismiss with prejudice.
- Two4 3y ago
  Does that mean the judge grants the dismissal, but not with prejudice?
  - giantg2 3y ago
    With prejudice just means it can't be refiled.

mindslight 3y ago

I'd say the real root is that police and their departments are allowed to harm people and then just wring their hands of the damage rather than ever having to make their victims whole. The harshest repercussion they worry about is having to do extra paperwork. This applies to everything from simple detainment through wrongful arrest and outright homicide. We'd be a lot less outraged if the people arrested with flimsy tests, dog shows, profiling, etc and then later acquitted were ultimately compensated for their time, emotional distress, and legal representation - out of the overall budget for the criminal justice system. This would be a proper accounting for the externalities of law enforcement, rather than the current perverse reverse lottery for those who unluckily fall into their sights.

LorenPechtel 3y ago

The real problem with red flag laws is that they are engineered without any checks. They are the equivalent of a temporary restraining order, but without the short term limit of such.

alfalfasprout 3y ago

Worse, this low standard is used for civil asset forfeiture. So the police can legally steal your assets with next to no legal recourse for you.