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Redbeard1337

Obstructing Police at License and Registration Checkpoint in Nebraska

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Hello all,

 

I was recently subject to what I feel was a violation of my 4th Amendment rights at a license and registration checkpoint in Nebraska. This incident occurred on 4-26-2014. I was recording as I passed through the checkpoint so I have video up until my camera was taken from my hand. I had all of my information ready to give to the troopers, and all of my paperwork is valid and legal. I was then ordered to secondary, and when I questioned why and asked to speak to a supervisor, the troopers opened the door on the spot and asked me to get out.

 

I am very confused as to why any of this occured. I was traveling with my girlfriend and young son at the time, and she is absolutely tramatized by the whole situation.

 

I have the video on Youtube, is it ok to post the link to it here?

 

What occurred after the video was shut off was that I was handcuffed and made to sit on the side of the road while the troopers ordered my girlfriend and son to another police vehicle. The trooper questioned if I had been drinking to which I responded that I wouldn't be answering any questions. (I hadn't been drinking at all btw). The troopers then told me I could have a trooper move my car or they would tow it. I again questioned why I was being detained, which they could not answer. I told them I would move my car and be on my way. The trooper then stated again that I could allow another trooper to move it or it could be towed. I said I would not allow anyone else to drive my car, so they called a tow truck. The truck moved my car to a parking lot a block north and I was arrested for obstructing police.

 

My concerns are the following:

 

The state patrol in this area always sets up these checkpoints as "License and Registration" checks, but they are operated as de facto DUI checkpoints.

 

The signage leading up to the checkpoint is inadequate. The signs are posted only after there is no other way to avoid going through the checkpoint. In this case the signs were posted just before going over a bridge, where there is no chance at all of turning off to a side street or turning around.

 

My main concern is that I was completely compliant with what is required of me at this checkpoint. I had all of my valid paperwork ready and handed it to the trooper when requested. When I comply with that requirement, why would I be ordered to secondary? Doesn't the trooper need reasonable suspicion of a crime to ask me to secondary? If he thought there was reasonable suspicion, why was he not able to articulate what he was investigating?

 

Why was my phone taken from me when I have the right to record my interaction with the police? And why was another trooper attempting to access my phone after he took it?

 

 

This is obviously a situation where I will need a local attorney to represent me, but I'm hoping someone here may give me some possible scenarios and advice on how to proceed.

 

I have no problem posting the video here if that will help. I'm new here and I haven't seen anyone else post Youtube links in their posts, so I refrained from doing so.

 

Any advice is greatly appreciated.

 

 

Cheers.

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I never said it was illegal. I know they have to right to set them up and to ask for my information. I complied with everything that was required and they still harrassed me. I understand if you don't care about defending your rights, but I'm looking for helpful advice here.

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Given all the things that COULD have happened, this will be annoying, but I'd be grateful that's ALL that happened.

 

I'd like to think you'd have googled the topic of videotaping police and specifically as to Nebraska.  If so, it's unclear why you aren't pestering the ACLU in NE.

 

Don't forget 1st Amendment instead of fixating on 4th.

 

"I have the video on Youtube, is it ok to post the link to it here?"

I wouldn't bother, but you're free to (unless terms of service state otherwise ... and presumably you've read those).

 

"I again questioned why I was being detained, which they could not answer."

Well, they COULD have but evidently chose not to.

You don't need to explain here why you were videotaping, but I'd keep certain of those observations to yourself because they aren't precisely helpful, e.g.:  "The signage leading up to the checkpoint is inadequate [personal opinion]. The signs are posted only after there is no other way to avoid going through the checkpoint [cough]."

And I suppose you'd think it's unfair of a police car to be sitting somewhere with lights off and no "adequate" warning?  (This isn't snark; it's just an example of how you're exposing yourself to eyerolling.)

Not sure what you mean by "give [you] possible scenarios".  You already know how to proceed is to speak with counsel.

 

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What I meant by adequate signage was that I thought there was a regulation governing these checkpoints that states that there has to be an opportunity for motorists to avoid the checkpoint if they wish. I know this is just a minor point but I was thinking if the checkpoint wasn't even setup right in the first place, then it might help my case.

 

The difference between this and a cop sitting with his lights off is that these are suspicionless checkpoints. A cop would only normally pull you over only if he witnessed a traffic infraction.

 

And what I meant by possible scenarios are ways that this might play out. Possible penalties? And what can I expect a lawyer to cost.

 

Thanks for your help.

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Your state's interpretation and application of the US Supreme Court case of Michigan State Police v. Sitz (1990) 496 U.S. 444 which authorized police checkpoints doesn't require that there be an available exit.  Your state supreme court has upheld checkpoints as long as there is a written protocol and in situations where every car is stopped.  As to what the possible penalties are, you never said what you were charged with.  You'll have to contact local attorneys and find out how much they will charge to represent you.

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While you (poster) said "obstructing police", we cannot know precisely what statutory or common law infraction they might be referring to.

Can't expect strangers to know what some unknown lawyer in your area would charge. 

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The citation states: Obstructing police in violation of statute 28-906. I was able to find the definition for Nebraska.

 

28-906. Obstructing a peace officer; penalty.

(1) A person commits the offense of obstructing a peace officer, when, by using or threatening to use violence, force, physical interference, or obstacle, he or she intentionally obstructs, impairs, or hinders (a) the enforcement of the penal law or the preservation of the peace by a peace officer or judge acting under color of his or her official authority or (B) a police animal assisting a peace officer acting pursuant to the peace officer's official authority.

(2) For purposes of this section, police animal means a horse or dog owned or controlled by the State of Nebraska or any county, city, or village for the purpose of assisting a peace officer acting pursuant to his or her official authority.

(3) Obstructing a peace officer is a Class I misdemeanor.

 

I'm not sure which clause they are applying to me, but I certainly wasn't ever physical or violent or threatening. Im thinking they are going to say my car was obstructing the checkpoint. But they are the ones that had me get out of the car.

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While we know, based on info presented by you, it's nonsense (if anything, they intentionally impaired or hindered their own operations by being asshats), we cannot know what story they may make up and that you'll be forced to rebut.   Problem here is that there's publicity element and you never know how prosecutors will react. 

I'd pester the ACLU, as I said.

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The signage leading up to the checkpoint is inadequate. The signs are posted only after there is no other way to avoid going through the checkpoint. In this case the signs were posted just before going over a bridge, where there is no chance at all of turning off to a side street or turning around.

 

Are you suggesting you think this makes the signs legally inadequate?  If so, on what basis do you think this?

 

 

 

I again questioned why I was being detained, which they could not answer. . . .

 

If he thought there was reasonable suspicion, why was he not able to articulate what he was investigating?

 

Just because the troopers chose not to articulate the reason for the detention does not mean that they "could not" or were "not able" to do so.

 

 

 

Why was my phone taken from me when I have the right to record my interaction with the police?

 

Obviously, this is a rhetorical question, but what makes you think you have "the right to record [your] interaction with the police"?

 

 

 

What I meant by adequate signage was that I thought there was a regulation governing these checkpoints that states that there has to be an opportunity for motorists to avoid the checkpoint if they wish.

 

What made you think that?

 

 

 

And what I meant by possible scenarios are ways that this might play out. Possible penalties? And what can I expect a lawyer to cost.

 

You'll have to make some phone calls to find out what attorneys in your area charge.  As for "ways that this might play out," you'll either be convicted or acquitted (with a small chance that the prosecutor might drop the charges).  As for possible penalties, a class I misdemeanor carries the possibility of up to one year in jail and/or up to a $1k fine.

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Yes, there is such a thing as common law offenses. 

 

I don't know of a state that by now hasn't ruled that police in particular have no expectation of privacy when on-duty, nor anyone in public knowing they are being recorded.  (Shoe being on the other foot, police don't need anyone's permission to record the interactions.)  It's best not to "secretly" record when including audio in a two-party state, of course.  

 

Police don't charge folks with "illegal taping" of them (well, the most recent state to allow that was IL, but evidently declared unconstitutional some years back); the catchall work-around is to assert that the person is obstructing/hindering them in their duty.

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Yes, there is such a thing as common law offenses. 

 

Apparently in a few states some part of the criminal common law still survives. But there is no criminal common law prosecution at the federal level (see United States v. Hudson, 11 U.S. 32 (1812)). Most states, too, have eliminated common law crimes. In Nebraska, the state has not expressly eliminated common law crimes, but the state case law is clear that where the state has adopted a statute on a matter the common law on the subject is displaced. Given that Nebaska has a pretty detailed set of criminal statutes, there isn’t much left to the common law to cover, if anything. Indeed, I see nothing referencing common law crime prosecution in that state for well over 50 years. As a practical matter in most states (and perhaps all), the statutory criminal law is what is applied today, even if the common law hasn’t been expressly eliminated.

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The topic was not federal prosecution (I'm not clear why the scope was expanded, but it presumably served as a reason to pick a nit).

 

"Indeed, I see nothing referencing common law crime prosecution in that state for well over 50 years."

And you wouldn't, unless you reviewed docket entries on every criminal case initiated in every county (or asked someone at the NCJIS to give you a database produced by searching every case with a "CL" or equivalent designation as far back as their data collection goes). 

 

I think you know it was an inclusive general observation about what could be, and there's no reason to go round and round about it. 

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I understand if you don't care about defending your rights

 

Typical remark from somebody who did something stupid and is now trying to rationalize it.

 

Of course I care about defending my rights. That's why I'm a member of the NRA and consistently vote for those who oppose Obama and his totalitarian cronies.

 

But I'm not stupid enough to annoy police officers when they are doing their jobs.

 

As for your potential legal consequences, if you haven't hired a criminal attorney by now, I suggest you do so and address your questions to the attorney.

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I think you know it was an inclusive general observation about what could be, and there's no reason to go round and round about it. 

 

Perhaps it escaped your notice that I was in fact backing your assertion that there are still some common law crimes (though not very common anymore, if you’ll pardon the pun), but simply providing some more detail and context for it. It wasn’t meant as an attack on your answer in the least. 

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We must have wildly different interpretations of "attack", because I didn't and wouldn't (and couldn't reasonably) characterize your post as one.  I believe the rest is to whatever degree disingenous (never mind the obvious, but also not helped by "perhaps it escaped your notice").  Polite pretense isn't my thing, as you know.   :)  I don't see a reason to expand things into a multi-state or nationwide analysis.  PG said there's no such thing as common law offenses, and I said there was.  PG's more than capable of doing his own research.

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Red, don't get drawn into a larger debate anyone on the topic of first amendment rights, though I note with some irony that there are plenty of people who'd say if you aren't talking about the exercise of a right they care about in the way they would exercise it, well, then you might be categorized as "stupid" and a "smartass" and maybe even a "stupid totalitarian smartass".   (snort) (sigh)

 

P.S.:  It is also worth noting the sad reality that many who take an oath to protect and defend the Constitution do not in fact often know what it actually entails and/or means, or choose not to practice or abide by it and/or fail to recognize it when they do not.  (I'd venture that naturalized citizens are the most cognizant and take it more seriously than most.)

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Red, don't get drawn into a larger debate anyone on the topic of first amendment rights, though I note with some irony that there are plenty of people who'd say if you aren't talking about the exercise of a right they care about in the way they would exercise it, well, then you might be categorized as "stupid" and a "smartass" and maybe even a "stupid totalitarian smartass".   (snort) (sigh)

 

P.S.:  It is also worth noting the sad reality that many who take an oath to protect and defend the Constitution do not in fact often know what it actually entails and/or means, or choose not to practice or abide by it and/or fail to recognize it when they do not.  (I'd venture that naturalized citizens are the most cognizant and take it more seriously than most.)

 

I agree that those that have taken an oath to uphold the Constitution often don't know what that means. I'm not a legal expert(which is why I'm here obviously), but I do carry a Constitution in my bag and read it regularly. I was even able to have Ron Paul sign it a few years ago. So yes, I am "one of those guys" that cares about any of my rights being infrigned upon.

 

As far as my meeting this moring with the lawyer, he was very excited about the case. He doesn't even think I'll go to trial. He said there was nothing from the trooper's statement that falls under obstruciton. Obviously it's not wise for me to post details so I'll leave it at that, but I'm very excited now too.

 

Thanks to all for your insight. I'll update this thread after I find out next week if the case if going to proceed.

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So I went to the arraignment last Friday and the clerk could not find my file. She spoke with the county attorney and apparently they have not filed charges. In the meantime, they still have my $1k bail. I made my appearence, so my understanding is the entire bail amount should be returned to me. I was informed that if charges are filed, I will be notified by mail, but bail is not returned until I'm sentenced. Obviously something is wrong here. If I have no charges, then what is the bail for?

 

29-901. Bail; personal recognizance; conditions.

 

(a) The execution of an appearance bond in a specified amount and the deposit with the clerk of the court in cash of a sum not to exceed ten percent of the amount of the bond, ninety percent of such deposit to be returned to the defendant upon the performance of the appearance or appearances and ten percent to be retained by the clerk as appearance bond costs, except that when no charge is subsequently filed against the defendant or if the charge or charges which are filed are dropped before the appearance of the defendant which the bond was to assure, the entire deposit shall be returned to the defendant.

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As for "county" attorney v. state's attorney (in my world, one represents the county, not the state), did you contact them?  It's odd that an arraignment would take place without a prosecutor in attendance, even if (s)he didn't have your "file".

You can't know that charges won't be filed; the state has a good while to decide.

 

"... I will be notified by mail, but bail is not returned until I'm sentenced."

Er, bail would not be returned (assuming you are charged, convicted and "sentenced").  :)

"If I have no charges, then what is the bail for?"

To secure any relevant/requisite appearance(s) at trial (not just arraignment).

 

It's unclear why you're focusing on this at the moment, and is there a particular damn reason you haven't engaged counsel?  :)

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Well technically there wasn't an arraignment. It was scheduled for last Friday in the heap of other arraignments they had that day. Everyone is required to check in with the clerk first before going into the courtroom. It was at that point that the clerk said they don't have anything for me because no charges have been filed.

 

I understand what purpose the bail serves and I understand that the county has up to the statute of limitations to file charges, but surely they can't hold the bail that long until they decide? The bail is there to make sure I show up to all court dates, I've fulfilled my obligations with regard to the bail and there are no more scheduled court dates. At this point I'd rather give it some time to see if anything develops rather than pay a lawyer to get the bail released and essentially pay him the bail money for his fees.

 

I have spoken with a lawyer and sans the bail issue, this is what he thought would happen. He said there's really nothing that shows any obstruction so he didn't think charges would be filed.

 

I spoke to the county attorney's office because I wanted something in writing stating I was there, they said there's no need for that and if they were going to take any action it would be soon. I have to go in tomorrow for a speeding ticket, so I'll ask them again for an update.

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Er, bail would not be returned (assuming you are charged, convicted and "sentenced").  :)

"If I have no charges, then what is the bail for?"

To secure any relevant/requisite appearance(s) at trial (not just arraignment).

 

Bail certainly would be returned once the case is over and the defendant has met all the conditions of bail, including showing up for all required court appearances. I don't know why you'd think the bail would not be returned. If you are thinking of the situation in which the defendant pays a bail bondsperson to put up the bail, then the bail would get returned to the bail bonds person, not the defendant, but it does indeed get returned to the person who posted it. The court doesn’t just get to keep it. 

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Just to update anyone following this thread, I did receive a letter from the county attorney stating they have declined to file charges in this case. 100% of my bail money has been returned and it looks like I am done having to worry about this being on my record.

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Well ... depends on what you mean by "on my record."  Eventually, I'd go to state court's site or google "expungement" and name of my state to seek the forms for expungement of the arrest record. 

 

Unfortunately, however, please note that in the internet age, once that information is vacuumed up and replicated, it's all but impossible with present technology to erase it from everywhere.  You'll be playing whac-a-mole.  So, for a number of purposes, depending on who searches what database or uses this or that background service, you may have to explain this for the rest of your days.  And certainly you'd need to explain if you filed a lawsuit or are part of a lawsuit, since that will be a matter of public record.  Speaking of, what's up on the front with civil rights issue generally?  I'm more curious about that part.

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