Hi guys, apparently in Sydney statutory power allow P.O.s to stop your vehicle for an RBT without reasonable suspicion under the NSW Road Transport (Safety and Management) Act 1999 S. 13. so check the laws in your state.
What you can ask is, where did you breach the peace, what is the reasonable cause, and are they presuming you are a government entity, employee or agent or performed some function of government, because if you are not one of those, then you are not under statute law!
Many people are concerned about the NSW Law Enforcement (Powers and Responsibilities Act) 2002 which was supposed to lapse but have been extended indefinitely. These are emergency powers and can be implemented by a Commissioner or deputy or assistant Commissioner of police. They can pick a target area or road leading to a target area, and claim the power to stop and search any vehicle or person without warrant or reasonable suspicion -ie. total police state powers.
I would be inclined to ask the cop, "so where is the war zone? Don't those powers apply only under emergency or war conditions?
The only condition is that they may detain vehicle or person 'for as long as is reasonably necessary' and no strip searches are allowed.
They also claim the power to confiscate vehicle or mobile phones or any other item 'to and keep them for 7 days, or longer if a court o rules.
- an objectively justifiable suspicion that is based on specific facts or circumstances and that justifies stopping and sometimes searching (as by frisking ) a person thought to be involved in criminal activity at the time, see also reasonable cause at cause compare probable cause at cause, terry stop.
Note: A police officer stopping a person must be able to point to specific facts or circumstances even though the level of suspicion need not rise to that of the belief that is supported by probable cause. A reasonable suspicion is more than a hunch.
Source: Merriam-Webster's Dictionary of Law 1996. Merriam-Webster, Incorporated. Published under license with Merriam-Webster, Incorporated.
Defined: 'Reasonable suspicion' is information which is sufficient to cause a reasonable law enforcement officer, taking into account h or her training and experience, to reasonably believe that the person to be detained is, was, or is about to be, involved in criminal activity.
The officer must be able to articulate more than an 'inchoate and unparticularized suspicion or 'hunch' of criminal activity.' (Terry v. Ohio (1968) 392 U>S> 1, 27 [20L.Ed.@nd. 889, 909].)
"Because the 'balance between the public interest and the individual's right to personal security,'[Citation] tilts in favour of a standard less than probable cause in such cases, the Fourth Amendment is satisfied if the officer's action is supported by reasonable suspicion to believe that criminal activity '"may be afoot,"' (United States v. Sokolow (1989) 490 U>S> 1, 7 [104 L.Ed.2nd 1, 10]; quoting Terry v Oho, supra, at p. 30 [20 L.Ed.2nd. at p. 911].)
From Law.com http://dictionary.law.com/Default.aspx?selected=1618
n. sufficient reason based upon known facts to believe a crime has been committed or that certain property is connected with a crime. Probable cause must exist for a law enforcement officer to make an arrest without a warrant, search without a warrant, or seize property in the belief the items were evidence of a crime. While some cases are easy (pistols and illicit drugs in plain sight, gunshots, a suspect running from a liquor store with a clerk screaming "help"), actions "typical" of drug dealers, burglars, prostitutes, thieves, or people with guilt "written across their faces," are more difficult to categorize. "Probable cause" is often subjective, but if the police officer's belief or even hunch was correct, finding stolen goods, the hidden weapon or drugs may be claimed as self-fulfilling proof of probable cause. Technically, probable cause has to exist prior to arrest, search or seizure.
See also: Bill of Rights search search and seizure
Read more: http://dictionary.law.com/Default.aspx?selected=1618#ixzz45t3kUFyg
The Fourth Amendment provides that 'no warrants shall issue, but upon probable cause.'
The Constitution doesn't furnish any definition of 'probable cause,' leaving that task to the Supreme Court, which has also applied the probable cause standard to certain warrantless activities.
The term 'reasonable suspicion' is not of constitutional derivation but was fashioned by the court to describe a level of suspicion lower than probable cause. The court has struggled to provide meaningful definitions of both terms, and law enforcement officer have likewise struggled to understand and apply the court's vague, general pronouncements, In Ornelas v. U.S., the court acknowledged the problem:
'Articulating precisely what 'reasonable suspicion' and probable cause' mean is not possible. They are common-sense, non-technical conceptions that deal with the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. As such, the standards are not readily, or even usefully, reduced to a neat set of legal rules,; (Ornelas v. U.S.)
Though it may not be possible to articulate precisely what 'probable cause' means, the court has offered this guidance:
'Probable cause does not require the same type of specific evidence of each element of the offence as would be needed to support a conviction.' (Adams v. Williams)
'Finely-tuned standards, such as proof beyond a reasonable doubt or by a preponderance of the evidence, useful in formal trials, have no place in the probable cause decision.' (Maryland v. Pringle)
'The rule of probable cause is a practical, non-technical conception affording the best compromise that has been found for accommodating often opposing interests.' (Beck v Ohio)
'The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behaviour; jurors as fact-finders are permitted to do the same - and so are law enforcement officers.' (U.S. v. Cortez)
'We have held that probable cause means a 'fair probability'.'(U.S. v. Sokolow)
Sometimes, its easier to define something by pointing to a category of examples that make the meaning clear. For instance, coming up with an abstract definition of 'red' might be difficult, but the meaning could be made clear by saying, "It's the colour of delicious apples, blood, ripe strawberries and tomatoes, ketchup, and stop signs."
Similarly, it may be easier to get a handle on the concept of 'probable cause' by identifying familiar law enforcement activities associated with a requirement of PC. As the Fourth Amendment mandates, you need PC to get a search warrant.
The same goes for arrests. 'Whether an arrest is valid depends upon whether, at the moment the arrest was made, the officers had probable cause to make it - whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the person to be arrested had committed or was committing an offence.' (Beck v. Ohio)
And PC is the level of information and suspicion that justifies the warrantless search of 'fleeting targets,' such as cars, trucks, buses trains, airplanes, and boats. (U.S v. Ross)
There is also a concept that is sometimes referred to as 'probable cause plus.' In Winston v. Lee, the Supreme Court said that when a search involves highly invasive probes into the body - such as surgery to recover a bullet - there must be probable cause to believe evidence will be found, plus a compelling need for the evidence that outweighs the suspect's right to be free of invasive procedures that could threaten his life or health.
Source: 'Police Patrol - the Law Enforcement Magazine'
It was not until 1968 that the need for a standard lower than PC was recognised by the supreme Court. In Terry v. Ohio, the court confronted defence challenges to both the detention of a robbery suspect and the weapons frisk that disclosed the gun he sought tot suppress. The court noted that a temporary investigative detention is less of an infringement of a person's liberty than arresting him and taking him into custody. Therefore, said the court, police need not have as much justification for this lower level of restraint as the probable cause that would have been required to make an arrest. The court called this lower justification standard for detentions 'reasonable suspicion.'
This discussion shows why it is a mistake to use the expression 'PC for the stop,' which mismatches a higher level of justification with a lower level of infringement of individual liberty.
'In Terry v. Ohio, we held that the police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity is afoot, even if the officer lacks probable cause.' (U.S. v. Sololow)
As for the weapons pat-down search of Terry, the court recognised that an officer - safety search limited to a frisk of a suspect's outer clothing is less of an intrusion on the suspect's privacy than a full-scale search of everything he was wearing and carrying; this partial search could be justified, said the court, based on a reasonable suspicion that the person might be armed and dangerous, which would be less than the PC necessary for a thorough search.
As with the concept of 'probable cause', the lower standard of 'reasonable suspicion' was not easily denied. 'The concept of reasonable suspicion, like probable cause, is not readily or even usefully reduced to a neat set of legal rules, 'but 'the level of suspicion required for a Terry stop is obviously less demanding than that for probable cause.' (U.S. v. Sololow)
Again, defining reasonable suspicion in terms of familiar activities, it is the level of information and suspicion yo need when you make a vehicle stop or a pedestrian stop, or pat down someone who might be armed, or search a vehicle based on reasons to believe it may harbour concealed weapons. (Michigan v. Long)
WHAT IS AVERMENT?
A positive statement of facts, in opposition to argument or inference. 1 Chit. PI. 320.
In old pleading. An offer to prove a plea, or pleading. The concluding part of a plea, replication, or other pleading, containing new affirmative matter, by which the party offers of declares himself 'ready to verify'.
Source: Blacks Law Dictionary. 2nd. Ed.
NEGATIVE AVERMENT, pleading, evidence.
1. An averment in some of the pleadings in a case in which a negative is asserted.
2. It is a general rule, established for the purpose of shortening and facilitating investigations, that the point in issue is to be proved by the party who asserts the affirmative; 1 Phil. Ev. 184; Bull N. P. 298; but as this rule is not founded on any presumption of law in favour if the party, but is merely a rule of practice and convenience, it, ceases in all cases when the presumption of law is thrown into the opposite scale. Gilb. Ev. 145. For example, when the issue is on the legitimacy of a child born in wedlock, it is, incumbent on the party asserting its illegitimacy to prove it. 2 Selw. N. P. 709.
3. Upon the same principle, when, the negative averment involves a charge of criminal neglect of duty, whether official or or otherwise, for the law presumes every man to perform the duties which it imposes.
2 Gall. R. 498; 19John. R. 345; 10 East, R. 211; 3 B. & P. 302; 3 East, R. 192; 1 Mass. R. 54;
3 Campb. R. 10; Greenl. Ev. SS 80; 3 Bouv. Inst.n. 3089. Vide Onus Probandi.
A Law Dictionary, Adapted to the Constitution and Laws of the United States. By John Bouvier. Published 1856.