Vick Poll

[Doomsday101]

I'm certain it's not the same. They don't confiscate the home because, more times then not, the meth labs have a habbit of blowing up. It's on the Land Lord. Having said that, the point is that if he was Joe Citizen, he would already have been faced with legal action. Because he is a Celeb, he has not been. A normal person, in that situation, would already have been faced with charges IMO. Nobody worries about making it stick because it's not going to be all over the national news. It is different for Vick then it would be for an average Joe. IMO, Vick has received the benifit of the doubt much more so then an average citizen would have, under the same circumstances.

I think investigators are just trying to make sure they have all the evidence they need for a conviction before issuing an arrest warrant at this stage. I had read that recently in Virginia a similar case was thrown out because of a botched investigation

 

[ABQCOWBOY]

I think investigators are just trying to make sure they have all the evidence they need for a conviction before issuing an arrest warrant at this stage. I had read that recently in Virginia a similar case was thrown out because of a botched investigation

I'm certain you are correct Dooms, and rightly so IMO. The point I'm trying to make is that I, for one, don't believe Vick is being victumized here. I've read where several posters have elluded to the fact that if this wasn't Mike Vick, none of this would be going on, so to speak. My point is just the opposite. Because this is Mike Vick, he's not in jail already. IMO, he has received more then his fair share of latitude in this matter.

 

[Doomsday101]

I'm certain you are correct Dooms, and rightly so IMO. The point I'm trying to make is that I, for one, don't believe Vick is being victumized here. I've read where several posters have elluded to the fact that if this wasn't Mike Vick, none of this would be going on, so to speak. My point is just the opposite. Because this is Mike Vick, he's not in jail already. IMO, he has received more then his fair share of latitude in this matter.

True. Just recently a dog fighting ring was busted here in the Houston area, the only difference is the publicity of Vick's possible involvement for anyone to say that this would be a non-issue and authorities would just overlook if not for Vick don't know what they are talking about. Being Vick is involved I'm sure the investigators will make sure every i is dotted and t crossed before they act.

 

[jay cee]

I'm certain it's not the same. They don't confiscate the home because, more times then not, the meth labs have a habbit of blowing up. It's on the Land Lord. Having said that, the point is that if he was Joe Citizen, he would already have been faced with legal action. Because he is a Celeb, he has not been. A normal person, in that situation, would already have been faced with charges IMO. Nobody worries about making it stick because it's not going to be all over the national news. It is different for Vick then it would be for an average Joe. IMO, Vick has received the benifit of the doubt much more so then an average citizen would have, under the same circumstances.

That's where I disagree with you. I don't think Vick's celebrity has kept him from being charged. The fact that they are still trying to build a case against him has kept him from being charged.

They still don't have any definitive proof against him.

For instance, If they had video evidence of him at a dogfight on that property, he would be charged by now.

How do you think they could convict him if they don't have the evidence yet?

The fact is, these cases are very difficult to get convictions, unless you catch them in the act of dogfighting.

If the normal case is difficult to get a conviction, how do you expect the authorities to rush and charge Vick, when he did not even live at the house?

I believe that if Vick was just a regular Joe Blow, they would not even go after him, they would just try and convict the cousin and be done with it, (or more likely, do nothing at all).

I'm no prosecutor, but Law and Order was my favorite show for years.
(The Unit has now surpassed them).

On L&O, they usually start gathering enough solid evidence to charge a defendant, then they try and strengthen their case by trial time.

 

[fortdick]

I'm not sure how this was a response to my post.

No, I'm correct. "Preponderance of of the evidence" is a more stringent evidentiary standard than "probable cause."

See: http://en.wikipedia.org/wiki/Burden_of_proof

Theo's right guys...

Preponderance of the evidence is used in civil cases. It essentially means, "enough to tip the scales in your favor," or 50.1% of the evidence supports you. It's really the only burden of proof that can be described numerically.

Are you certain saying that Theo is right?

I can go to a judge and ask for a search warrant because the facts are 50.1% in favor that there is evidence in the house I want to search?

Has anyone here other than me actually attempted to get a search warrant? You have to have verifiable evidence that there will be something there. You can't role in and say a confidential informant told me.

Say you have a guy you think is dealing crack. You bae this on the way he looks and the people he hangs out with. You can't get a warrant for his pad based on that, even though there might be a preponderance of evidence. Maybe you have an informant that said he bought crack from your suspect, but the dude won't testify. No warrant.

You stop and search three people coming out of the house, because they are staggering around and you are afraid they might hurt themselves, but have to make sure they don't have any weapons on them (yes, shady). All three have crack on them. Still no PC.

One of the guys you searched is a parolee, and you haul him in for a violation. He decides that he wants to make a deal. He will testify in exchange for not going back to jail. Maybe you have PC, if you get the right judge. More likely you will have to have something to corroborate the PV.

You can take all the facts of the surviellance, the CI, the three druggies, and the PV, and probably get a clean warrant.

But remember, if anything goes haywire, like your witness refuses to testify, now your warrant is in question, so you better have him nailed down to a written statement before seeking the warrant.

Now, is this what you mean by a low threshold?

 

[fortdick]

I got yo back, no matter how bad it hurts.

You guys always stick together. Ever contacted the Bar to complain about sleezy lawyers? They look out for themselves.

Tell you a story. You might remember a few years back, two lawyers in Frisco were running fighting dogs for the Aryan Brotherhood. The dogs got loose and killed a woman. Prior to that, I had actually contacted the BAR to complain about these two lawyers relationship with the AB. NO action ever took place, and I never received a follow up call.

Maybe, just maybe, if you didn't stick together so tightly . . . . .

BTW, my daughter is starting law school this fall. Does she turn her sole in when she gets there, or does she wait until she graduates?

 

[fortdick]

I was talking about why the authorities have not charged him with anything yet. They want a conviction, so they are not going to move on Vick until they have proof that he was in on it.

Not just that he owned the house where illegal activities were occurring.

As for Tx, the only fallout in that situation, is that the authorities could confiscate the home. They could not arrest a landlord for the crimes of his tenant.

I don't know about New Mexico, but I'm pretty sure it's the same.

The Feds are on it. Dude is in deep feculence.

 

[jay cee]

The Feds are on it. Dude is in deep feculence.

Vick has plenty of money, they will need evidence to convict him. Only poor people get convicted without evidence.

Nifong probably cut his teeth railroading poor people without evidence, but when he tried that crap with those Dukies, he ended up disbarred.

If they can get the evidence, Vick is a goner. But they have to get it. I think he was involved, but there is a big difference in thinking it and proving it.

 

[peplaw06]

Are you certain saying that Theo is right?

Yes

I can go to a judge and ask for a search warrant because the facts are 50.1% in favor that there is evidence in the house I want to search?

You can definitely get a warrant with that much evidence, but you don't have to have that much. Preponderance is only used in civil cases. Probable cause is needed to get a warrant, and for a grand jury to issue an indictment.

Has anyone here other than me actually attempted to get a search warrant? You have to have verifiable evidence that there will be something there. You can't role in and say a confidential informant told me.

That's true, but verifiable evidence doesn't = 50.1% or a preponderance of ALL the evidence. And you can use a "confidential" informant. I say that, meaning that you don't have to tell the magistrate who the informant is. If the police officer or person seeking the warrant knows that the informant is usually reliable, that will be enough.

Here's the caption from a Texas case that gives you a taste...

[FONT=Arial,Helvetica]722 S.W.2d 209; Allen Derrwood DEES, Appellant, v. The STATE of Texas, Appellee. (Tex. App.);

[/FONT] Allen Derrwood DEES, Appellant, v. The STATE of Texas, Appellee.
No. 13-86-135-CR.
Court of Appeals of Texas, Corpus Christi.


December 11, 1986.


Ava Ganem Vasques, Victoria, for appellant.
Wiley L. Cheatham, Dist. Atty., Cuero, for appellee.
Before UTTER, BENAVIDES and DORSEY, JJ.

OPINION

UTTER, Justice.
The trial court found appellant guilty of unlawfully possessing a controlled substance of more than four hundred grams and assessed punishment at 40 years in the Texas Department of Corrections and a fine of $10,000. We reverse the judgment of the trial court.
Appellant, in essence, raises two issues in eight grounds of error. In his first four grounds, he contends that the affidavits supporting the search warrant were fatally defective and therefore the magistrate did not have probable cause to issue the search warrant. The search, conducted pursuant to the warrant, produced the controlled substance supporting the conviction.

Say you have a guy you think is dealing crack. You bae this on the way he looks and the people he hangs out with. You can't get a warrant for his pad based on that, even though there might be a preponderance of evidence. Maybe you have an informant that said he bought crack from your suspect, but the dude won't testify. No warrant.

That's not preponderance of the evidence. Preponderance is used when you have all the evidence laid out. You don't have to get a guy to commit to testifying in court before getting a warrant. If he tells you the guy is selling crack, and it's verifiable and credible, that's probably enough.

You stop and search three people coming out of the house, because they are staggering around and you are afraid they might hurt themselves, but have to make sure they don't have any weapons on them (yes, shady). All three have crack on them. Still no PC.

Totally different issues. If you arrest the guys, you automatically get to search their "person." If you don't arrest, you can do a pat down for weapons, but if you don't feel anything that may be a weapon, you can't continue searching for drugs, etc. These are very thin lines in this area, and there are lots of confusing rules and case law telling officers what they can and can't search for.

One of the guys you searched is a parolee, and you haul him in for a violation. He decides that he wants to make a deal. He will testify in exchange for not going back to jail. Maybe you have PC, if you get the right judge. More likely you will have to have something to corroborate the PV.

I think you're right there. The corroboration is needed, because the credibility of the PV is in question. He's trying to get himself a better deal.

You can take all the facts of the surviellance, the CI, the three druggies, and the PV, and probably get a clean warrant.

Again, you can take as many facts as you want to the magistrate. The more you have the easier it is to get a warrant. But preponderance isn't the requirement... it's not really even used in criminal matters.

But remember, if anything goes haywire, like your witness refuses to testify, now your warrant is in question, so you better have him nailed down to a written statement before seeking the warrant.

Nah, if your warrant was validly issued according to the facts known at the time of issuance, it won't be invalidated at a later time. If you could invalidate searches later simply because witnesses refuse to testify, then all those mob stories about "keeping witnesses quiet" wouldn't just be mob stories. Here's some more from the case I quoted earlier...

Although appellant's motion was based on Aguilar v. State, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), the proper standard for review is now a "totality of the circumstances" approach. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Eisenhauer v. State, 678 S.W.2d 947 (Tex.Crim.App.1984); Bellah v. State, 653 S.W.2d 795 (Tex.Crim. App.1983). The task of a reviewing court is not to conduct a de novo determination of probable cause, but only to determine whether there is substantial evidence in the record supporting the magistrate's decision to issue the warrant. See Eisenhauer v. State, 678 S.W.2d 947, 952.

Now, is this what you mean by a low threshold?

It's not as low as it could be, but it's pretty low.

 

[peplaw06]

You guys always stick together. Ever contacted the Bar to complain about sleezy lawyers? They look out for themselves.

Tell you a story. You might remember a few years back, two lawyers in Frisco were running fighting dogs for the Aryan Brotherhood. The dogs got loose and killed a woman. Prior to that, I had actually contacted the BAR to complain about these two lawyers relationship with the AB. NO action ever took place, and I never received a follow up call.

Maybe, just maybe, if you didn't stick together so tightly . . . . .

Yeah if lawyers didn't stick up for each other, it would be a life-threatening profession

BTW, my daughter is starting law school this fall. Does she turn her sole in when she gets there, or does she wait until she graduates?

Yeah, you gots to check that at the door.

Nah, I still have SOME of my soul. Like ChocoLab said in another thread, I'm not jaded enough by the system yet. Tell your daughter good luck, and that it's not so bad:scream:

 

[fortdick]

Yes


It's not as low as it could be, but it's pretty low.

Maybe I was misunderstood. Theo was saying that preponderance was a higher threshold than PC. That is not true. It just isn't true. I must say again, it is not true. Predonderance is whatever convinces the trier of fact that one side is truer than the other.

To get a warrant, you need PC. Now that threshold my be low from a trial standpoint, it is certain not a piece of cake from a law enforcement perspective. You have to have enough evidence to convince the mythical reasonable person that the evidence you seek is PROBABLY at the location to be searched. That is higher than a preponderance.

Your example of the cop making a traffic stop shows the difference. His/Her observations that the driver was swerving make it reasonable to believe that the person is drunk. It is not probable, however. Once the stop is made, the officer sees the empty bottles and smells the alcohol. Now the mythical reasonable, prudent, person would believe that person has been drinking. Hence the breathalizer and off the the pokey.

The evidence for the stop was insufficient to make the arrest. There was, however, a preponderance as far as the cop was concerned that the person was drunk before he/she even approached the car.

I guess it depends on your position in the food chain. To a lwyer used to reasonable doubt, PC is a low threshold. To the LEO on the streets, it is the highest. Anything beyond that is the DA's responsibility

 

[fortdick]

Yeah if lawyers didn't stick up for each other, it would be a life-threatening profession

I agree there. I have seen lawyers stabbed by their clients in the courtroom.

Yeah, you gots to check that at the door.

They have doors? I thought it was some kind of flaming river of brimstone?

Nah, I still have SOME of my soul. Like ChocoLab said in another thread, I'm not jaded enough by the system yet. Tell your daughter good luck, and that

Thx. She got a scholrship to U of Arizona. I am told that it is a pretty good school for blood sucking vampires.

I am proud of her even though she is going to the dark side.

If you are not jaded by the criminal justice system, you may consider yourself in a small minority.

it's not so bad:scream:

 

[theogt]

Has anyone here other than me actually attempted to get a search warrant? You have to have verifiable evidence that there will be something there. You can't role in and say a confidential informant told me.

I've worked for a judge that granted them. Does that count?

Maybe I was misunderstood. Theo was saying that preponderance was a higher threshold than PC. That is not true. It just isn't true. I must say again, it is not true. Predonderance is whatever convinces the trier of fact that one side is truer than the other.

Dude, it's true. I can pull up case law or legal case books showing you.

 

[fortdick]

I've worked for a judge that granted them. Does that count?

Dude, it's true. I can pull up case law or legal case books showing you.

So you are syaing that PC is less than 50.1%? I like that! The Fourth Amendment won't, but I do!

 

[ABQCOWBOY]

That's where I disagree with you. I don't think Vick's celebrity has kept him from being charged. The fact that they are still trying to build a case against him has kept him from being charged.

They still don't have any definitive proof against him.

For instance, If they had video evidence of him at a dogfight on that property, he would be charged by now.

How do you think they could convict him if they don't have the evidence yet?

The fact is, these cases are very difficult to get convictions, unless you catch them in the act of dogfighting.

If the normal case is difficult to get a conviction, how do you expect the authorities to rush and charge Vick, when he did not even live at the house?

I believe that if Vick was just a regular Joe Blow, they would not even go after him, they would just try and convict the cousin and be done with it, (or more likely, do nothing at all).

I'm no prosecutor, but Law and Order was my favorite show for years.
(The Unit has now surpassed them).

On L&O, they usually start gathering enough solid evidence to charge a defendant, then they try and strengthen their case by trial time.

First of all, I never said they were going to convict him. I said if he were anybody else, he would already have been charged. It's true. He would have been, IMO. Secondly, I would point out that nobody here knows what the investigators do, or do not have in the way of evidence. They may have enough to convict or maybe not. You must keep in mind that there are multiple possabilities in the way of what he may eventually end up being charged with. It may be the case that they are trying to get him on multiple charges and thus, are still investigating. Or, maybe they don't have enough. Nobody really knows for sure. To say that they have nothing because he has not been charged is a bit premature IMO. We will soon see but not as soon as we would have if he were just Joe Lunch Pale, I think.

 

[fortdick]

I've worked for a judge that granted them. Does that count?

Dude, it's true. I can pull up case law or legal case books showing you.

Say you are driving down the road, listening to the Allman Bros., or some other driving type music, and you see a red light blinking in the mirror. Local John Law writes you a ticket for speeding, but you know that your cruise control was set at 65 mph. You decide that you want to contest it. You go to traffic court. It is your word against Smokey's. The judege rules on a preponderance that the cops word is better than yours and slaps you with a huge fine and suspends your license.

Are you saying that is a higher burden of proof than PC? I can get a search warrant based upon my word?

Do yourself a favor and don't ever run for a muni judgeship.

 

[theogt]

So you are syaing that PC is less than 50.1%? I like that! The Fourth Amendment won't, but I do!

I've said before that I don't do percentages.

Say you are driving down the road, listening to the Allman Bros., or some other driving type music, and you see a red light blinking in the mirror. Local John Law writes you a ticket for speeding, but you know that your cruise control was set at 65 mph. You decide that you want to contest it. You go to traffic court. It is your word against Smokey's. The judege rules on a preponderance that the cops word is better than yours and slaps you with a huge fine and suspends your license.

Are you saying that is a higher burden of proof than PC? I can get a search warrant based upon my word?

Do yourself a favor and don't ever run for a muni judgeship.

I'm not sure what the burden of proof is in traffic cases. I worked for a federal judge.

 

[fortdick]

I've said before that I don't do percentages.

I'm not sure what the burden of proof is in traffic cases. I worked for a federal judge.

That is an evasion. You know it is a prepondrance. Peplaw used the 50.1% figure for POE, so I cited that. Your arguement is failing counselor.

 

[peplaw06]

Maybe I was misunderstood. Theo was saying that preponderance was a higher threshold than PC. That is not true. It just isn't true. I must say again, it is not true. Predonderance is whatever convinces the trier of fact that one side is truer than the other.

To get a warrant, you need PC. Now that threshold my be low from a trial standpoint, it is certain not a piece of cake from a law enforcement perspective. You have to have enough evidence to convince the mythical reasonable person that the evidence you seek is PROBABLY at the location to be searched. That is higher than a preponderance.

Your example of the cop making a traffic stop shows the difference. His/Her observations that the driver was swerving make it reasonable to believe that the person is drunk. It is not probable, however. Once the stop is made, the officer sees the empty bottles and smells the alcohol. Now the mythical reasonable, prudent, person would believe that person has been drinking. Hence the breathalizer and off the the pokey.

The evidence for the stop was insufficient to make the arrest. There was, however, a preponderance as far as the cop was concerned that the person was drunk before he/she even approached the car.

I guess it depends on your position in the food chain. To a lwyer used to reasonable doubt, PC is a low threshold. To the LEO on the streets, it is the highest. Anything beyond that is the DA's responsibility

Here's the deal... Good law enforcement officers (which I'm sure you are, you sound like you are) feel that it's a high burden. When you're trying to get a search warrant, you probably double, triple check, etc. to make sure that your search isn't invalidated. That probably leads you to gather up more evidence than you really need.

If a search is invalidated for not having PC, then the whole case can be thrown out. That's not something an officer wants to see, so they make doubly sure they can meet the burden (the good ones).

But the reality is that it's not that high in most instances. Here's the wikipedia site (I know, I know, wikipedia... blah... but it sounds like this time it is actually right). It's not easy to find one case that lays everything out. You have to look at secondary materials. The paragraph on PC states that some courts say it's 30%, some 40%, and yes some 51%. But preponderance is always 51%.

Go check out the Sokolow case they cite, and check out Illinois v. Gates, where the court defines PC as a "fair probability that contraband or evidence of a crime will be found."

 

[theogt]

That is an evasion. You know it is a prepondrance. Peplaw used the 50.1% figure for POE, so I cited that. Your arguement is failing counselor.

I'm not making an argument. I'm simply telling you facts.