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Author Topic: Local Jurisdiction and RF Compliance  (Read 4080 times)
N2EY
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« Reply #15 on: November 07, 2009, 12:29:57 PM »

K5END writes: "They would not bother to knock or ring the doorbell if they didn't need my permission to come on in."

I don't know if that's really true.

IANAL, nor a LEO, but as I understand it, they have to refrain from the use of force unless circumstances require it. IOW, they have to knock rather than just break down the door, unless there's a good reason not to (such as bad people waiting for them to knock so they can set off a bomb or something). Similar to the situation where, for a traffic violation, they will put the lights on and motion you over rather than try to shoot out your tires.  

73 de Jim, N2EY

hpe cu in SS
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N3OX
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« Reply #16 on: November 07, 2009, 02:51:33 PM »

" Bottom line is, I believe one should choose his battles carefully. Is the issue worth it? The old military saying, "is this the hill you want to die on?" is apropos."

Yep.

"Dan, I agree with you in theory, but at post-50 age I can't think of anything I'd like to do less than sit in jail overnight. I don't have any experience at it. Im just pretty sure I would not like it very much."

Yes I understand that.  It's just that sometimes to call attention to oppression, someone has to face it head on and avoid dodging it.  And it doesn't have to be you. But sometimes it has to be someone.

Henry Louis Gates is a good recent example.  It is not unlawful to break into your own home.  It *should not* be unlawful to simply get ANGRY and YELL or say harsh words to a police officer, especially if the officer refuses to identify themselves, as Gates alleged.  After all, the position of power held by the police officer over an angry, yelling citizen is vast.  The officer is shielded by a fortification of the lawful threat of physical force and detention if the situation further gets out of hand.

It doesn't matter to me how furious Gates was.  It doesn't matter to me that Gates allegedly loudly accused, implicitly or explicitly, Sgt. Crowley of racism.  It doesn't matter to me that Gates was allegedly eventually yelling outside the confines of his house, "disturbing the peace" on a technicality.
 
I don't believe that your average 59 year old college professor, unarmed and making no non-verbal threat, as fiery as he may have been, is a legitimate safety concern to an armed officer of the law.  

I do believe that your average 59 year old preeminent black scholar, angrily and semi-publicly alleging police discrimination on the basis of race, while demanding that the officer identify himself could be viewed as a major threat to the JOB of an armed officer of the law.  He could also be viewed as a major threat to police public relations.

But it would seem he wasn't an immediate threat to anyone's life or health, and honestly, I think a homeowner accused of robbing his own home *should* get a temporary pass on "disturbing the peace" on his own front porch.

That doesn't mean he *DOES* get a pass, and stays out of jail, just that I think he **should** have his right to protection of his angry free speech and opinions on the situation he was in on his own front porch.  I think there are various aspects about law enforcement in 2009 that probably require some people to go to jail briefly to ensure we continue to have a *general* ability to stay out of jail for doing things that anger, worry or scare police officers, but are otherwise not real crimes.  And again, I've got a lot of respect for the tough job law enforcement has, both in terms of physical safety and security and in navigating a complex and tangled web of moral, legal, and ethical judgment calls.

- - - - - - - -

There are some really hideously tough issues in the proper application of justice.   There is no easy answer.  There will never be a completely easy answer.   There will just be a tense give-and-take setting precedent after precedent to adjust society to better preserve and protect our true basic freedoms.  Some issues that are of major concern today will slowly anneal out and new tense areas will certainly be created.  

I have an issue with uneven application of justice across racial and socioeconomic lines.  I see the tangled mess of that issue in the positive feedback loops of poverty and lack of opportunity on crime.

I have an issue, certainly more close to having a *direct* effect on me and closer to the initial topic of this thread, with the unfettered application of arbitrary rules that seem to be largely to make us think we're safe from terrorist attack.  

- - - - - - -

As a rampant builder of home-made electronics, I occasionally worry about running afoul of this.  I'm sufficiently aware of the "real world" that won't pull a Star Simpson and walk into Logan Airport with blinking lights on my chest.  But if you were to walk into my hamshack I wonder how hard it would be to tell the difference between a mess of radio parts and a mess of bomb parts.  If you were to pore through my hundreds of dollars of Mouser and Sparkfun Electronics orders, what sort of incriminating device could you find?   And I can't help but wonder how that might affect a U.S. ham whose name was, I dunno, Aziz Ramullah more than it would affect Dan Zimmerman.

And I think it's easy to go down the road of saying in this type of tricky situation, "well, if you don't ACT like a suspect when the police confront you, you won't be considered a suspect"  

It's very easy to put the burden on the citizens and suggest it's the duty of good citizens to make sure all this goes smoothly.   Don't do anything out of the ordinary and meekly comply with any and every request made of you by a law enforcement officer and we'll all be free and safe and nothing bad will happen ever again.  Be vigilant, report any and all "suspicious activity" and  avoid doing anything suspicious yourself.  No officer of the law would have to worry about that weird guy wandering through in a park in DC with a box sprouting wires every which way and a 20 foot antenna out the top, and what the consequences would be to the public he serves,  his family, or the American Way if that box was some sort of terrorist weapon instead of a 20m pedestrian QRP setup.  And he wouldn't have to be worried about whether he would keep his job and be able to provide for his family and whether he'd have to live with blood on his hands if he walked away and it turned out to be a weapon.  

This sort of thing is a hard decision, made even more complex (and touching on the other issue that concerns me) if you replace me with Aziz,  and I do not envy it.  But I think it's a mistake to suggest that it should be **obvious** to me or Aziz that we should expect to be questioned for that activity, that we should expect to have our QRP strolls stopped by law enforcement... I have a hard time even typing it, honestly, because I'm thinking to a certain extent to myself "what am I saying?  How can you catch bombers if you don't question people who have bomb-looking stuff? "

- - - - - - - -

And then I have to remind myself that we don't live in a movie, and the most fatal bomb (*) to go off on U.S. soil was a U.S. citizen in a Ryder truck full of fertilizer and diesel.    And the worst terrorist attack of them all used the massive kinetic and chemical energy of everyday vehicles.  Regrettably, the terrorists we have to worry about, at least stateside, don't always telegraph their intentions by making bomb-looking bombs that they brandish in public.  

We can give up our rights to have scary looking workshops to build equipment that could be considered "hoax devices" and we could give up our freedom to engage in "suspicious activity,"   but I doubt that that would make us particularly safer.  Just less free.

So it's true, we have to choose our battles carefully.  And I don't want to go to jail even for a night if not necessary.

But when I think about the situations in which I could run afoul of the law upon refusal to cease amateur radio activities, it brings up a whole slew of questions and scenarios regarding why I might be asked to do that.  And I think some of those scenarios, for me, would probably be worth some unpleasantness.  


73
Dan

The (*) was to add an aside that I remember clearly finding out about the Oklahoma city bombing in little snippets of three or four distinct repeater conversations on 2m as my sister, mom, and I drove through the hills of West Virginia on a day trip.  Certainly the most sad and surreal experience I've had in ham radio.
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73,
Dan
http://www.n3ox.net

Monkey/silicon cyborg, beeping at rocks since 1995.
WB2WIK
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« Reply #17 on: November 07, 2009, 04:54:53 PM »

I can't think of any case where a signed search warrant would not be required regarding "RF compliance."

From the U.S. Supreme Court:

>Search Warrant

A search warrant is a judge signed order that permits the police to search for specific items at a specific place at a specific time. Typically, a search warrant is ordered to search people and private property in order to seize suspected contraband and/or criminal evidence. The fourth amendment of the constitution addresses the issue of search warrant rights and was designed to protect the rights of private citizens from unlawful search and seizure. As a result of fourth amendment legal interpretations, the laws governing search warrant requirements are constantly in flux. Search warrant laws indicate when a warrant is and is not required to search a person or property, how a search warrant is obtained, and the process by which a lawful search is conducted.

A search warrant is typically necessary when it intrudes on a person's privacy or private property. A place or person is considered private when that privacy is reasonably expected and socially acceptable. A search warrant is required in any situation where artificial or high-tech search methods would otherwise be employed to gain the information sought. A search warrant gives the police the right to search a particular place, at a particular time, for particular items as approved by a judge. In the following cases police may extend a search beyond the terms of a warrant: to ensure safety, to prevent the destruction of evidence, to discover more about obtained evidence, and when contraband or evidence is in plain view.<

There are exceptions to the need for a warrant, but I doubt "RF interference" would ever be deemed one of them.  I also believe I could win a damages claim against any law enforcement agency who exercised otherwise.

Frankly, I'd love to see it happen, specifically to me.  Our city has lots of money, and I could benefit from collecting some of it.  :-)
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K5END
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« Reply #18 on: November 07, 2009, 08:19:13 PM »

Looks like we got a live topic.

Dan said,
"As a rampant builder of home-made electronics, I occasionally worry about running afoul of this...if you were to walk into my hamshack I wonder how hard it would be to tell the difference between a mess of radio parts and a mess of bomb parts."

Dan, that is so weird that you said that. Recently I was building a home-brew 40 meter mobile antenna to use in TQP. Was quite a fun project, even if I did not make the deadline and use it for that contest. In building the support* for the coil, I was reminded of its resemblance to a "movie version" of nuke detonators, i.e. props, such as used in "Broken Arrow" and a plethora of James Bond, etc. movies.

I was thinking to myself I need to be careful and not epoxy this thing together in the driveway. The back patio was the place to do it. And THEN when I wound and assembled a nice big fat conductor copper coil and enclosed the whole thing in a polycarbonate tube, I didn't know if it looked like a bomb or a death ray gun. It could be easily used as some sort of movie prop.

So I understand your concern about being mistaken for building something very uncool. Because of stealth antenna issues, none of my neighbors know I'm a ham, or at least I have never mentioned it. So I would not even get the benefit of the doubt if some neighbor should raise an eyebrow and call the cops.

*This coil assembly uses techniques I have not yet seen. Maybe they have been used, but I have not seen them. I almost submitted it here as an article, but I'm tired of writing for free just to get flamed and criticized by people who don't know what they are talking about. Having said that, I DO welcome criticism from those who DO know what they are talking about. I can think of two...maybe three regular contributors here on eham who fit that category, so the demographics indicate this is not my target audience. Thus this coil idea is destined for a series of magazine rejections. Smiley

Looks like I hijacked the thread I started. Big deal. It's the weekend. Nothing wrong with relaxed mind wandering and free thoughts. A cold (it is STILL hot here in Houston) beer or two should slow that down. Heading for the fridge now.

Holy cow, I just remembered. This is a sweepstakes contest weekend...and I'm sitting here typing drivel that no one cares about anyway. Still have a few hours to jump in. CUL.

73
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N5LRZ
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« Reply #19 on: November 08, 2009, 05:13:38 AM »

RE END...

AND IF they said Search WARRANT and you dont answer the door they get their little portable battering ram and break IN the door.

A Search Warrant is the laws way of saying YOU HAVE NO RIGHTS any longer to privacy.

AND IF ITS THE FCC its even worse because THEY have the LEGAL right to inspect your station.  FAILURE to do so in all likelyhood will result in both a Notice of LIABILITY aka BIG ASS FINE Plus possible hearing for jerking of your license.

In the REAL WORLD there is absolutely NO SUCH THING as RIGHTS.
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WB5JEO
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« Reply #20 on: November 08, 2009, 05:44:36 AM »

"However, I never did realize that resisting an unlawful arrest is unlawful. That concerns me in a case of "official oppression," which from the citizen point of view I can assure you that it happens A LOT more than anyone is willing to admit."

It is just how the law has to be written. Think about if the arrest being unlawful was a defense or made it not an offense. A person would be guessing, using their own opinion, or arguing. They would have to judge lawfulness themselves in order to know if what they contemplated doing was a crime. It is a Constitutional principle that it must be possible to know what you're doing is or isn't a crime. If you can't, because the law is overly vague, it won't stand up for long. ("Tall" grass in a city ordinance, for instance, when "tall" isn't defined.) Since many courts, all the way to the top, have spent a lot of time worrying over specifics and generalities of when arrests are lawful, it's not reasonable to expect citizens to work it out in seconds. So the law is that resisting any arrest or detention is a crime, and if it turns out to be unlawful, there are legal remedies, including obliteration of the arrest record. But the law has to be written as it is, and in this case, the intent is really to prevent citizens mistakenly resisting and police from having to fight someone who mistakenly thought the arrest was unlawful.


"There are exceptions to the need for a warrant, but I doubt "RF interference" would ever be deemed one of them. I also believe I could win a damages claim against any law enforcement agency who exercised otherwise."

Of course, this whole thing got started from a hypothetical that was pretty unlikely to happen. But one of the exceptions to the requirement for warrant or even probably cause is in the area of "community caretaking." If, for instance, a hostage or barricade situation was taking place, and a transmission was interfering with the operation of a "throw phone" or a P.A. being used to communicate with someone inside and there was a knotheaded refusal to cooperate, entry and minimum necessary force are fully justified. Courts have always used language like "this is what we expect and demand police do" when they talk about this subject, which even extends to things where the police have a reasonable belief that someone is in danger but are mistaken but find criminal evidence when they enter. It's all good, if they're doing the right and proper thing. A warrant could also be had to obtain evidence of violation of one of those ordinances that address interference, although that would be pretty extreme, since it could be effectively worked through municipal court without it.

It is in situations where it's outside the classic search and seizure law that law students get into trouble when they think they understand it better than the people who work with it and apply it all the time.
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CHARLIEBAKER
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« Reply #21 on: November 08, 2009, 07:23:50 AM »

hay my buddy jeff told me to tell yall that you need to get a search warent for a clue!!! lol!!!
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K5END
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« Reply #22 on: November 08, 2009, 09:26:02 AM »

"Of course, this whole thing got started from a hypothetical that was pretty unlikely to happen."

Correct. Good discussion though. Thanks again for your thoughtful and well-written comments.
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N5LRZ
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« Reply #23 on: November 10, 2009, 09:27:24 AM »

Re JEO...

When pulled over by a law enforcement officer (for trafic violations) I always start the conversation with the following sentence:

Good (morning/evening) officer (smile) what seems to be the problem.

More than once by not being bitchey to the officer I have convinced the officer to be content on the lecture rather than the trafic violation ticket.

Sometimes it does not work.

Either way it ONLY money.
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WB5JEO
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« Reply #24 on: November 10, 2009, 10:44:29 AM »

I'd like to provide some guidance here, but the truth is that I was issued a ticket book when I started patrol and turned in the same book, mostly unused, two years later. But I think the most effective would be to say, "Hi. I guess I was speeding. Sorry."

Exchanges not likely to go well:

"Don't you have anything better to do?"
"Yes, and I'll be doing it right after I issue you this ticket."

"I pay your salary."
"Humm. Not unless you're the Sheriff in an amazing disguise."

"I'm the Sheriff's cousin."
"Wow. You're the third of his cousins I've cited today."

"You can't write me. I'm a cop."
"That's funny. My sheriff was just talking to your chief about you. Oh, wait. My mistake. That doesn't happen until tomorrow."
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K5END
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« Reply #25 on: November 10, 2009, 11:30:58 AM »

I hate to give away a trade secret, but when they say, "do you know why I stopped you?"

I say, "Yes, sir! You stopped me to give me a warning" and I say it in a congenial way.

The officer/trooper/deputy has laughed 100% of the time.

So far, it's always worked to lighten the situation up and ease the tension, ticket or no ticket. Those guys have a thankless, dangerous job and maybe it brightens their day a bit (not that I go around speeding just to cheer them up.)

I think it actually increases the chance he will write me a ticket, but in the long run it just means I'll have to take 6 or 8 hours of defensive driving to dismiss the ticket (standard procedure here in TX,) and I am a safer driver for that.
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N5LRZ
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« Reply #26 on: November 10, 2009, 12:56:48 PM »

RE END...

We make things simple:  $$$$$ pay the ticket and go away.

The ONLY people who are forced to take drivers orientation are DUIs.

For non serious speeding tickets you dont even have to show up for court.   Just go to the Sheriff Dept and show them the ticket receipt you received.  The clerk will tell you the fine and ya just pay the money.  

The judge does not even have to see you at all.
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N5LRZ
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« Reply #27 on: November 10, 2009, 01:01:38 PM »

Re END...

A word of warning for the State of Louisiana...

Three places where you very definately do not want to speed because these little towns survive off speeding tickets....

Golden Meadow, Louisiana
Krotz Springs, Louisiana
Port Barre, Louisiana

The local police have absolutely no sense of humor.   And they dont take excuses nor do the issue warnings--being as their salaries are being paid by those speeding tickets.
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WB5JEO
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« Reply #28 on: November 10, 2009, 06:42:04 PM »

That is much less a problem in Texas than it once was. Municipalities are now limited to making only a stated limited percentage of the city budget from traffic enforcement. After that amount is hit, the whole fine goes to the state. There are, of course, small towns that it's best not to chance it in, but it's mostly because their officers have little else to do, and many of them suffer from highways passing through the middle of town, and traffic enforcement attacks the primary threat to safety there. The legislature also addressed such things as small speed trap towns arresting every speeder and taking them straight to the court by making arrest for speeding unlawful if the violator will sign the ticket and promise to appear.
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K4DPK
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« Reply #29 on: November 10, 2009, 08:42:33 PM »

Here’s how it went at my house a few years ago.

At 2230 local time, there came a very loud knock on the front door, scaring the dickens out of my wife.  I went to the door to find a large county policeman, and since it was summertime and the porchlight was attracting these GA bugs, after saying “Good evening, Sir”, I invited him in.

At first, he wanted to talk on the porch, but I explained the situation, air conditioning, bugs, etc. and he entered.

I asked how I could help him, and he proclaimed, “Your radio is coming in on telephones in this neighborhood, and I want it stopped right now.”

I inquired as to how he knew it was my radio, and he did not answer.  I asked who had complained, because it was the first I’d heard about it.  He said he couldn’t divulge that information.

At that point I explained to him that, even if it was my equipment causing a problem, it was under the jurisdiction of the FCC and not a local matter.  He told me the county police often took care of these problems because the FBI couldn’t get to them all.  It was then I realized there was no help for him, and told him to either leave or lock me up.  I also told him I could have the FCC enforcement counsel (Riley) call his boss the next day and straighten out the jurisdictional dispute.

On his way out, he asked if I would put a filter on the lady’s telephone.  Hmmm.  Plot thickens.  

I said I would have, had she come to me first, but as it was I would only offer assistance to the phone company to run tests.

He left and I never heard any more about it.  When I called Riley the next day, he offered to call the police chief, but I asked him to hold off unless I had another visit.  I didn’t.

We have a weekly summary of police activity in the local paper, and when that came up, it read “the ham operator said it was not the police department’s jurisdiction”.

I think there may have been some confusion, because this happened right after the FCC turned CB enforcement over to local entities.


Phil C. Sr.
k4dpk
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