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Is this false arrest. Arrest, Search, Seizure, Warrant

Discussion in 'Criminal Procedure, Criminal Court' started by kbodie444, Nov 13, 2001.

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  1. kbodie444

    kbodie444 Law Topic Starter New Member

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    My nephew was at home when his son was chased by a group of 6-8 boys all older than he is onto the back porch.

    My nephew told the group to leave but they wouldn't, my nephew dumped a cup of cold coffee out and some of the coffee may have spalshed onto one of the boys in the group.

    The boys older brother came to my door very excited. He was basically threatening me. When I explained what happened he calmed down a little and then went and found my nephew and got abusive.

    Unknow to us, some one called the police, problably the older brother. This was about 2 hours after the incident. The police arrested my nephew and charged him with risk of injury to a minor.
    The group of boys were not charge.
    When I told the police that I was threatened they made a veiled threat - stating that if I pressed charges I would likely get arrested. The he justified the older brothers threat saying 'how would you like it if someone threw hot coffee on your child.

    I told the officer that I was right there when this happened and that was no coffee was thrown at anyone. The officer stated that he had enough evidence to arrest my nephew and left. I told the officer that I wanted the older brother arrested and he said he would be back but never returned.

    I called the police station later and spoke to the same officer and asked whether the older brother was arrested yet and was again warned that I would problably get arrested if I pressed charges. I asked for what. I was told that someone had seen me having an 'heated discussion' with the older brother (this would have been at my fron door' I asked who said this and was told that they were minors and thus he couldn't reveal their names.


    Questions:
    1.) Was this false arrest?
    2.) My nephews attorney asked that I not make a stink about this until after my nephew straightens out his case .. is this wise. (Note: the attorney isn't on retainer, he's just helping my nephew out for now hoping that the prosecution will make a deal with my nephew and thus save my nephew about $10,000)
    3.) I live in a Condo complex. Should I ask the condo association to press trespassing charges against the indivuals who came onto the 'common property'.
    4.) What's the best way to document what has happened without letting the police or the D.A. know. I believe my nephews lawyer wants to keep everything quiet so as to suprise the prosecution if the case goes to court.
    5.) Also the older brother is supposedly has a criminal record. How can I find out what his record is?
    6.) When the police told me I would likely get arrested was that proper. Are there any reasons why the police didn't take my statement or arrest the older brother for threatening?
     
  2. Michael Wechsler

    Michael Wechsler Administrator Staff Member

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    1) The simplest question to ask is "did anyone get burned?" If nobody got burned and the coffee was cold then there was no danger.

    2) Your nephew's attorney speaks wise words. Never a good idea to have loose lips while there is an ongoing case. Remember that also in civil cases what you say can be used against you and your nephew.

    3) Were the individuals invited on the premises? If so, you can't press charges for trespassing. If he was chased onto the porch by the group then, yes you can but you should have reported the incident to the police immediately. Speak to your nephew's attorney FIRST.

    4) Again, your nephew's attorney speaks wise words. Document everything by writing it down as soon as possible. If you want to prove that you wrote all the items down as of a certain date then photocopy your writings, sign it, and send two copies by mail to yourself. You now have proof of your fresh recollection as of a date certain.

    5) Your nephew's attorney should know how. There are also research services that can pull records in addition to your investigation at the courthouse.

    6) I don't know what the threats were to you. Cannot say what could or should have happened.

    It sounds like your attorney knows what he/she is doing. Additionally, he/she knows more about the case than I do and may be in a better position to make certain judgment calls.
     
  3. kbodie444

    kbodie444 Law Topic Starter New Member

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    Thanks

    Thanks for your reply.

    I don't understand how writing a letter to myself can prove that I wrote the letter at the time the letter was written. Couldn't it be argued that I sent myself an empty envelope and then wrote the letter later.

    Oh wait a minute........ I'm a little slow at this stuff. I think I get it. I leave the envelopes sealed when they arrive in the mail. Then if I'm required to testify I bring the envelopes along with me to court. If it is suggested that I prepared my notes from distant memories rather than close to the time of the incident I can reveal the envelopes and offer them as 'proof' that I did indeed write my notes at a particular time.

    Is this what you meant ?

    In any event I plan to prepare and send the letters ASAP. Thanks.
     
  4. kbodie444

    kbodie444 Law Topic Starter New Member

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    Thanks Again

    I just wanted to thank you again. I reread your reply and noticed that I hadn't clarified a couple of points.

    When my nephew dumped his coffee I was present, but I have no way of knowing directly how cold the cofffee was. I know directly that the coffee wasn't freshly brewed and had been sitting around for at least 20 minutes. I do know that none of the kids cried out or made any indication that they had been burnt. They continued conversing with my nephew without break or pause. When my nephew said he was going to call the cops they scattered. This would indicate that either they didn't get hit with the coffee or that the coffee was cold. I was later told that the coffee had been sitting around for "2 Hours".

    Just after my nephew was arrested I was in a mild shock... but as I thought about it I realized that if there was any indication that one of these kids was hurt my nephew would have helped the child. And if he didn't I would have.

    At this point we don't know what is in the police report. It could be that these kids lied extensively.
     
  5. Michael Wechsler

    Michael Wechsler Administrator Staff Member

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    I'd certainly look want to look at the police report and determine why your nephew was arrested on his property. If there was no statement about burns on the "victims" I'd also be hopping mad and want clarification -- perhaps there is some correlation between the "victims" and the police, perhaps one in their family? It wouldn't be the first time... Good luck.
     

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