Youth Indiana

[john39]

Hello Irish223

A law governing a specific subject matter overrides a law that only governs general matters,OK?

IF there is no a law covering police questioning minor,when not in custody,then there is no lex specialis that would govern this,ok?

But that does not mean what you imply it means - that if there is no law prohibiting police questioning they are allowed to do it.Do you know why?
Because if there is no lex specialis that would govern this,THEN legi generali takes over AND GOVERNS THIS.The laws that regulate the general matters pertaining to consent of minors/legal competence of minors/official capacity of a police officer when interacts with citizens when on duty etc.
Lex specialis derogat legi generali (a law governing a specific subject matter (lex specialis) overrides a law which only governs general matters (lex generalis) )

Arguments "e contrario" are often used in the legal system, as a way to solve problems not currently covered by a certain system of laws.

Argumentum e contrario IS NOT logical fallacy,ok?

Lets use it.

THEN,By applying argumentum e contrario to Lex specialis derogat legi generali ,the result is - if there is no lex specialis,lex generalis governs.Ok?

Understand?

That is called interpretation of the laws.

You call it debating.

Either way,you clarified nothing.
What did you clarify and where? The "simply not true" statements are clarity that you offer?

 

[army judge]

I am not a lawyer

So I don't seek statute.
But should I bother?

Major continet in se minus (The greater contains the less)


If they can't use the statements of a minor they questioned without parental consent,why did they question the minor? Quod vanum et inutile est, lex non requirit (The law does not require what is vain and useless.)

Minors are legal incompetents.

In what capacity a police officer ,would interrogate/question/ legal incompetent who is presumed not to be able to care for him/her self?Who is presumed not to know and protect her/his rights?

WHY would he question without consent from guardian?

Because he can?

Police officer is a civil servant and should respect the fact that if he wants statement from the minor he needs to go the guardian.The minor is legal incompetent.

If police officer no longer affirms the rights and freedom of citizens, I wonder exactly what would he view as the purpose of his profession.

Outstanding analysis!!!

You're precisely on point.

I'll shut up now, you've said it all so well!

 

[john39]

Thanks Judge

My mother has been upset for many years that I did not become lawyer like my dad.She always thought I had the talent for it.

 

[army judge]

Thanks Judge

My mother has been upset for many years that I did not become lawyer like my dad.She always thought I had the talent for it.

The best lawyers are people who use common sense. Mom was right, you missed your calling. Your dad would be proud!

It is never too late to do something you could have done in the past.

 

[mightymoose]

NO. Absolutely not. The police do not have a right to take the phone in this manner. Doing so would be a violation of 4th Amendment rights.

HOWEVER, as you describe it here, the driver willingly gave the phone to the officer and effectively gave consent to the search in doing so, which makes it entirely LEGAL.

All the driver had to say was "No", and not give the officer the phone. If the officer then took the phone anyway then he would be liable to civil penalties, and any incriminating evidence found on the phone would likely be inadmissible in court.

If the officer is denied access to the phone and wants to see cell phone records then he can write a search warrant, get a judge to approve it, and then get the records from the phone company.... and nobody is going to go through all that over a traffic accident.

It is a matter of knowing your rights and standing up for yourself. In this case the officer was not wrong because there was consent to his actions. The driver might not have felt as if he had a choice, but he did, and the act of handing the phone over was all the consent needed.

 

[mightymoose]

A police officer is not permitted to interview a minor without a parent or guardian being present.

Perhaps this varies by state. This is not at all the case in California. There are variables as to whether or not the minor is being detained or in custody, and whether or not a request has been made.

 

[army judge]

Perhaps this varies by state. This is not at all the case in California. There are variables as to whether or not the minor is being detained or in custody, and whether or not a request has been made.

Moose, I respect what you do. Thank you for serving the citizens in your jurisdiction. You impress me as a police officer and citizen possessed of great integrity. I usually agree with most of what you post.

That said, a minor can't consent to anything. They can't waive their rights. They possess the same rights as an adult in regards to Miranda Warnings. They can't, however, waive that right. That belongs solely to their parent or guardian.

Of course, a police officer can ask a child which way the bad guy went? Did you see a man in a plaid coat, sonny? I don't think anyone is disputing that line of questioning.

 

[john39]

Mightymoose hi

Minors are legal incompetents.

They can not give implied ,or expressed consent in this instance,even if they WANTED to.Thys,if they did,it is invalid,because ONLY the guardian can give such consent,wheather implied or expressed.

In what capacity a police officer interacts with citizens.In his official capacity representing the goverment.

Why would the goverment interact with legal incompetent this way? When THE goverment made the rules (made laws) that minors are legal incompetents and their guardians give consent for them.

WHY would he question without consent from guardian?

The consent from the minor is INVALID.

 

[john39]

Ah,the Judge said the same thing one minute before me.
I wanted to collect the witt....

 

[mightymoose]

To simplify,what I want to say (or ask,because this is just my opinion/mediation here) is - for citizens what is not explicitly/expressly prohibited is permitted,and for government what is not explicitly/expressly permitted is prohibited...Am I right?What do you think? And if you think I am not,please tell me why (don't just say I am simply not right )

Thanks

What you say here is very much in the spirit of the 9th and 10th Amendments of the Constitution, which provides that powers not given to the federal government by the Constitution or reserved to the states or to the people. If the government has not prohibited an act, then it is legal... however, this is part of why we have juries who hear evidence and determine if a crime was in fact committed. Something that is not explicitly prohibited may fit into the gray area of a more vague statute.

 

[mightymoose]

Moose, I respect what you do. Thank you for serving the citizens in your jurisdiction. You impress me as a police officer and citizen possessed of great integrity. I usually agree with most of what you post.

That said, a minor can't consent to anything. They can't waive their rights. They possess the same rights as an adult in regards to Miranda Warnings. They can't, however, waive that right. That belongs solely to their parent or guardian.

Of course, a police officer can ask a child which way the bad guy went? Did you see a man in a plaid coat, sonny? I don't think anyone is disputing that line of questioning.

Yes Army Judge, you are right, but you are jumping to the far end of the spectrum where a juvenile is a criminal suspect in custody. In the situation given the juvenile is not in custody and is not a criminal suspect.

Further, yes, police can and do interview children all the time without parents present, however when certain variables come into play THEN Miranda and parents come into play.

 

[john39]

Wrong,nobody claimed that we are talking about situation when the juvenile is in custody.

WE are talking about situation when juvenile is NOT in custody.

Police represents goverment.

Goverment communicates ONLY with legal competents.

When goverment wants to communicate with legal incompetents,goverment goes to the guardians,first.

Ok?

 

[irish223]

Yes Army Judge, you are right, but you are jumping to the far end of the spectrum where a juvenile is a criminal suspect in custody. In the situation given the juvenile is not in custody and is not a criminal suspect.

Further, yes, police can and do interview children all the time without parents present, however when certain variables come into play THEN Miranda and parents come into play.

IMO, you're beating a horse that should be dead. Despite this clarification earlier on in the thread, this "debate" is ongoing. Good luck, but I think you're wasting your time.

 

[mightymoose]

The consent from the minor is INVALID.

The minor was not in custody. In such a situation there is no advisement required, and there is no waiver required... and yes, a minor can waive rights though that waiver will be subject to scrutiny later.

In fact, California law requires that a juvenile IN CUSTODY be advised of his rights as soon as is practicable, and a waiver MUST be obtained prior to questioning. There is no requirement that a parent be present prior to questioning, although a parent is to be informed that the child is in custody. The parent is not to be denied access to the child in custody and can invoke on his behalf.

In the scenario given we have a traffic investigation, not a criminal investigation. This is simply general questioning by the police and not an in-custody interrogation, and the cell phone search was 100% legitimate.

Again, I say this only as it pertains to California. Perhaps this varies by state.

 

[mightymoose]

IMO, you're beating a horse that should be dead. Despite this clarification earlier on in the thread, this "debate" is ongoing. Good luck, but I think you're wasting your time.

Ya well, I joined the party late.

 

[mightymoose]

Wrong,nobody claimed that we are talking about situation when the juvenile is in custody.

When you argue that the officer should not be talking to the juvenile then you bring the issue of custody into play.

In a non-custody, non-criminal scenario as we have there is no wrong doing by the officer. The only significance that age has to do with this scenario is whether or not the juvenile could legally drive the vehicle, which is not in question.

 

[john39]

When you argue that the officer should not be talking to the juvenile then you bring the issue of custody into play.

In a non-custody, non-criminal scenario as we have there is no wrong doing by the officer. The only significance that age has to do with this scenario is whether or not the juvenile could legally drive the vehicle, which is not in question.

Wrong again,I never brought the custody issue into play.Go through the posts.

Irish223 did.And to that I responded to her, in post number 21 .

All that IS regulated must not conflict with the Constitution.


Nothing is unregulated.

If not by lex specialis,then by lex generalis.

If not by lex specialis and/or lex generalis,then it is to be inferred from the Constitution.

So is what should Police officer do,when needs information from minor/legal incompetent,when the Minor is not detained,as well as when is detained.

In both instances he acts representing government.The government communicates with entities who are presumed legal competent and legal guardians of the legal incompetents,before it tries to communicate with the legal incompetents.Because the "government" should not chat with little kids ,IMO,before going to mom and dad and ask if that is ok.

All that is matter of interpretation of the laws.There are rules about interpretations of the laws.I used one in post number 21.Please tell me where I erred

 

[john39]

NO. Absolutely not. The police do not have a right to take the phone in this manner. Doing so would be a violation of 4th Amendment rights.

HOWEVER, as you describe it here, the driver willingly gave the phone to the officer and effectively gave consent to the search in doing so, which makes it entirely LEGAL.

All the driver had to say was "No", and not give the officer the phone. If the officer then took the phone anyway then he would be liable to civil penalties, and any incriminating evidence found on the phone would likely be inadmissible in court.

If the officer is denied access to the phone and wants to see cell phone records then he can write a search warrant, get a judge to approve it, and then get the records from the phone company.... and nobody is going to go through all that over a traffic accident.

It is a matter of knowing your rights and standing up for yourself. In this case the officer was not wrong because there was consent to his actions. The driver might not have felt as if he had a choice, but he did, and the act of handing the phone over was all the consent needed.

1.How did the juvenile driver give consent to the search by giving the phone "willingly" when officer asked for it,when legal incompetent can not give consent,either expressed,or implied.

In order to give implied consent,the legal presumptions are:

a)One knows and understands his/her rights
b)One by not asserting those rights,waives them

In order one to be legal incompetent the legal presumption is that he/she doesn't understand his/her rights and is unable to protect them.

What can be only possible logical conclusion?



Never mind custodial interrogation or "friendly chat" issue .The police wanted to "investigate" ,incident/accident/possible crime , and acted in official capacity,representing the government.Why government investigates legal incompetent about incident/accident/possible crime,without obtaining consent from the legal guardian ?

What "friendly chat"? If they want friendly chat,go talk to an adult,who understands that he can withdraw from it any time he wants and shut his mouth.

It is a matter of knowing your rights and standing up for yourself

Is it? Well,do you know why the minors have guardians? It is because they don't know their rights,and are presumed that can't "stand" for themselves.

In this case the officer was not wrong because there was consent to his actions

Really? Which consent? Consent given by legal incompetent is not valid consent.

 

[john39]

...beating a horse that should be dead

Assuredly there is great merit and wisdom in this words of yours,mighty moderator.But I assure you,you can scarcely preserve that which you have so honorably acquired,that made you moderator,if you win debates this way

 

[irish223]

Assuredly there is great merit and wisdom in this words of yours,mighty moderator.But I assure you,you can scarcely preserve that which you have so honorably acquired,that made you moderator,if you win debates this way

I'm not debating, I'm not interested in debating, nor am I trying to win a debate. I believe I've already made that clear. You, however.... well, you just sound jealous.