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Law Pro
Law Pro, Criminal Defense Lawyer
Category: Criminal Law
Satisfied Customers: 24057
Experience:  20 years trial experience in defense of criminal cases
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i have a neighbor that keeps calling the cops on me because Im s

Customer Question

i have a neighbor that keeps calling the cops on me because I'm smoking outside my apartment can i file harassment charges?
Submitted: 2 years ago.
Category: Criminal Law
Expert:  Law Pro replied 2 years ago.
Is there a rule in the apartment building/complex about smoking?
Customer: replied 2 years ago.
just that i can't smoke in the builing
Expert:  Law Pro replied 2 years ago.
What do the police tell you when they come?

Have they filed anything against the neighbor for filing a false criminal complaint?
Customer: replied 2 years ago.
no it's a small town and the cops are friends of my neighbors.
Expert:  Law Pro replied 2 years ago.
Do the police continue to come to your residence each and every time the neighbor complains?
Customer: replied 2 years ago.
yes and they tell me they called because Im smoking and they dont want us smoking in the yard.
Expert:  Law Pro replied 2 years ago.
Who doesn't want you smoking in the yard - whose yard is it? It's private property - correct?
Customer: replied 2 years ago.
no its owned by two different owners it is a four plex and we live in one of the apartments
Expert:  Law Pro replied 2 years ago.
So where exactly are you smoking?

Is that the same building and owner as where you reside?
Customer: replied 2 years ago.
just outside our door on the second level and she lives on the bottom floor
Expert:  Law Pro replied 2 years ago.
If it's not part of the lease that the property is "non-smoking" - then I would inform the police officers that if they harass you once again based on the complaints of this neighbor you will be filing a lawsuit against them for harassment.

Law Enforcement Officers have the right and the duty to stop and question any citizen, whenever a felony has been committed and they have reasonable grounds to believe that the citizen may have been involved in that felony. If this should happen to you, your first reaction should be to cooperate fully with the officer. This is not harassment, unless the questions asked do not or cannot pertain to any real crime.

At your first opportunity, when you suspect that you are being harassed, you should ask, "Am I under arrest?" This forces the officer to inform you of your official status. If he or she does not formally arrest you at that point, then you are still a "private citizen" with all the civil rights thereof. You do not have to answer any questions, or allow the officer into any premises for which he or she does not have a warrant. Ask the officer, "What crime is under investigation?" The answer to this question should allow you to decide whether the officers questions are legitimate. Only then, if you are being harassed, should you use any of the following tactics.

You should not volunteer information about any persons or incidents, no matter what is promised to you. Anything you say can be used against you and others, and could be used out of context to mean something you had never intended. You will not clear yourself by naming others or describing events. It is best not to say a word until you have legal representation present.

Sometimes you could be subjected to bigotry, insult, or epithets from police who feel that intimidation will get them results from otherwise reticent subjects. Do not go into shock, do not lose your temper and do not respond in kind; it will only serve to pour more fuel on the fire and make matters worse. If you can remember exact words and details, write them down at the first opportunity and talk with a lawyer about whether you have adequate grounds for a civil rights complaint.

The police may take you to the station to talk. If this happens, ask to have an attorney present. Then, shut up. Don't say anything until the lawyer is there with you, and speak only if he advises it.

If you are in a public place with a multitude of neutral witnesses, like an event in a public park, you can speak a little more freely. Just remember, witnesses can work against you, too, so watch what you say and keep your temper.

If you are at another's home when the police come in, you should keep quiet also. Avoid incriminating your host. You really don't know what grounds are being used for the raid, and you probably don't know they are innocent of whatever it is; so avoid incriminating yourself or others. In this case, the time to act is afterwards; see an attorney.

In your own home, if the police ask permission to come in, the answer should be "NO." You should step outside and talk with them. If the weather is too inclement for that, or if they don't like this approach, offer to go to McDonald's or to the police station. You don't have to let them in without a warrant. If you are asked, "What do you have to hide?" turn it around and ask "What kind of question is that?" If they are not asking to come in, but breaking down your door, give way and let them in. Don't fight them or make any insults or threats, but remember all that is said and done, make notes, and get a lawyer.

If the officer looks frightened or angry, take extreme precautions not to do anything to startle him or make him think you are about to do him harm. This is a time of maximum risk to yourself, so be very polite and don't do anything that may be interpreted as a threat.

 

If the worst happens and you are injured during the course of an improper police action, go to the nearest Emergency Room for treatment. Even if the injury appears to be superficial, the hospital is required by law to notify the police in the case of an assault. This will begin the process of documentation for your eventual complaint or lawsuit. The hospital's report will be instrumental in substantiating such a complaint.

 

 

While the law recognizes many different circumstances under which the police may conduct a search of persons or property, only a few are relevant to this discussion. Of course, you are perfectly within your rights to ask the officer why he is searching you; his answer will help you to determine whether you have grounds for a complaint. (You always submit to the search; if the officer is acting improperly, you may file a complaint later.)

The Limited Protection Search is most easily used for harassment purposes. The law enforcement officer is permitted, if he has cause to suspect that a person is armed, to "frisk" that person for weapons. While this may be undignified, it is no more than that; if you are armed, surrender the weapon voluntarily before the search begins. This establishes that you are willing to cooperate with the officer, and limits the scope of further harassment. (Of course, if the weapon you carry is illegal, there are other consequences.) If you are not armed, it doesn't matter; even if he were to find contraband on your person, he probably could do no more than confiscate it, because it might not be admissible evidence.

If you are a female, you have the right to have a female witness present during the search. Another harassment tactic involves the "Plain View" search, which is not a search at all. This involves the officer's simply seeing some item which he defines as contraband; he has the right to confiscate it, as well as to take any further action as appropriate. Though this can be a major inconvenience, you can file a complaint against the officer through his department's Internal Affairs division, and you may be able to recover your property.

If you are actually arrested, then the officer may search your person and all of the surrounding area within your reach. This "Search Incident to Arrest" is permitted to insure that the arrested person cannot obtain a weapon or destroy evidence; any contraband or evidence relating to the reason for the arrest is admissible. You can do nothing about this, so relax. (It may be a tactic to rattle you. Don't let it.)

One special case: when the property to be searched is an automobile, the requirement for a search warrant is waived. The officer must still be able to prove to the Court that his search is "reasonable," but he does not have to obtain a warrant to make the search. This is because the vehicle is mobile, and could be gone by the time a warrant could be obtained.

Once again, we cannot make the warning strong enough: DO NOT resist a police officer or other law enforcement officer when he insists on making a search! Better to submit to the search than to the arrest or other consequences that could result from resistance! If you believe that the search was not reasonable, take notes as soon as you can. See an attorney. If you have a case, your attorney will deal with it.

 

 

 

Law Pro, Criminal Defense Lawyer
Category: Criminal Law
Satisfied Customers: 24057
Experience: 20 years trial experience in defense of criminal cases
Law Pro and 6 other Criminal Law Specialists are ready to help you
Expert:  Law Pro replied 2 years ago.

"You are under arrest." These are words that the common, upstanding citizen never expects to hear. However, as a Pagan or magical practitioner, you must be realistic. As the world stands, Pagans, Satanists, Witches and others deemed "radical," "non-conformist," or (in extreme cases) "dangerous to society", face the very real possibility that they may be harassed, arrested, charged with supposed crimes, or actually prosecuted for those "crimes." Whether your arrest is the end of a long series of harassments, or happens abruptly and surprisingly, there are certain procedures that the police are required by law to follow if they don't want the arrest to be deemed invalid in any future court proceedings. This section deals with that process, and hopefully, will include some useful advice on how to deal with being arrested.

You have probably already been stopped and questioned. The officer has informed you that you are under arrest, and your situation has radically changed. You are no longer a private citizen, but rather a ward of the State until such a time as you are released. You are protected under Criminal Code from certain indignities or atrocities (you may not be questioned without an attorney present, for example, and you cannot be physically abused), but your civil rights are severely limited. Let's examine what rights you do have, and how you should exercise them.

Most people have heard the almost ritual language of the Miranda Warning, mandated by the United States Supreme Court; but many do not know what those words mean. It is important to understand this warning; its provisions will govern your behavior from this point on:

    YOU HAVE THE RIGHT TO REMAIN SILENT.
    This means exactly what it says. You do not have to say anything from this point on, even to give your name or social security number. It is strongly recommended that you exercise this right.
    ANYTHING YOU SAY CAN AND WILL BE USED AGAINST YOU IN A COURT OF LAW.
    Again, this means exactly what it says. Every word you utter may be used against you or others in a future Court proceeding. Before you say anything, to anybody, you should examine it from all angles to see that it cannot be used to incriminate you or others in the commission of some crime. Anyone, including fellow prisoners or jailers, can be called as witnesses in a courtroom; they can testify as to conversations you had with them, or to those which they merely overheard. Also, many prisons and detention facilities are equipped with video and audio recording devices; be careful not only of what you say, but how you act in these facilities.
    YOU HAVE THE RIGHT TO AN ATTORNEY, AND TO HAVE THAT ATTORNEY PRESENT DURING QUESTIONING.
    It is strongly suggested that you exercise this right as soon as possible, if for no other reason than to signal your captors that you cannot be mistreated with impunity. Further, it is strongly suggested that you have your attorney present during any questioning, by police, prosecutors, or anyone else. Your attorney will know what questions may and may not be legally asked, and will advise you as to which questions you should or should not answer. Also, remember that the police will take anything that they can get; if your attorney is not present, you may be subject to more badgering from them than otherwise.
    IF YOU DO NOT HAVE OR CANNOT AFFORD AN ATTORNEY, ONE WILL BE APPOINTED FOR YOU AT NO CHARGE AND BEFORE ANY QUESTIONING.
    It is suggested that you retain a private criminal defense attorney, if at all possible, rather than take a Court-appointed Public Defender. Not that there aren't some very good public defenders out there, but most of them are either very young lawyers right out of law school or old veterans who have become somewhat cynical. Most of all, in virtually every city, public defense attorneys are extremely overworked; your public defender will not - and cannot - give your case the concern and effort that you need at this point. What you need is a good attorney who has your best interests at heart, and who will take a strong stand with his counterpart in the Prosecutor's office.
    YOU ARE NOW UNDER ARREST.
    Most people have no idea of exactly what this means. These formal words, uttered by a Law Enforcement Officer or other official who holds the power of arrest, take you out of the realm of the private citizen and make you a ward of the State. Your captors literally have control over every aspect of your life.

    Take this very seriously! Your captors will exercise control over what you wear, what and when you eat, even when you used to demoralize a prisoner and make him as docile as possible. You must submit to this, or you will be compelled by force.

Until you have been physically transported to a detention facility, the police do not have to let you do anything. (Even if you were skyclad when they interrupted your ritual, they do not have to let you get dressed. They might simply hand you a blanket to drape around yourself.) Be prepared for this. Also, be prepared to have all of your personal belongings (purse or wallet, wristwatch, jewelry, belt and shoes, even eyeglasses) taken from you. If you wear contact lenses, you do have the right to ask to remove them and put them in their wetting solution. (This is because the State is now responsible for your property, and is required to take reasonable action to keep it from harm.) You will be given an inventory and a receipt for everything confiscated, and it must be returned to you when you are released. The only exception to this is property seized as evidence. (Your attorney can advise you as to how to recover this property, after your case is closed.)

Once you reach the police station, you will be fingerprinted. Your name, the reason for your detention, and the date and exact time of your arrest will be noted in a log book, and your picture will be taken. Take careful note of the date and time of your arrest; the law states that you may only be held for a maximum of 72 hours (less in some states) before the police have to either formally charge you with a crime (and take you before a judge for a hearing to set bail) or release you. If you are held longer than that without a bail hearing, your attorney can file a writ of habeas corpus (wrongful detention) and have you released immediately.

During this 72-hour period, you must be allowed one telephone call. Use it wisely! It is the one and only one you will get. It might be wise, if you think it likely that you will be arrested or detained, to make arrangements with some trusted friend or relative beforehand. That way, you can call this person, who can act freely in your behalf. He or she can make as many phone calls as necessary to secure you a good attorney, a bail bondsman, or whatever is needed.

As a ward of the State, you are under the State's care. Police and prison officials can be held personally liable if you are mistreated, and they know it. You will be given the basics of sustenance; do not expect more. If, for example, you are under a physician's care and are taking prescribed medicine for a medical condition, they must continue that medication. If you are injured in the course of the arrest, you have the right to receive medical treatment from a physician. You will be fed and clothed. If you wear corrective eyewear or a hearing aid, you will have them when you see your attorney or when you appear in Court.

 

 

 

If you are charged with a crime - if you haven't done so by now, you can't put it off any longer. Get an attorney! A public defender just won't do; most of the time, he would try to persuade you to accept a plea bargain (you plead Guilty to a lesser offense in exchange for the prosecutor dropping the greater charge). Almost 80% of publicly defended cases are disposed of in this manner. Having retained a good attorney, take his advice; it's what you pay him for.

One other thing you can do: to the extent permissible by law, make sure that your case is made public. The glaring light of public attention is a potent weapon; it forces the legal system to operate as it should. Make sure that the media is informed of the injustice being done. AMER may be able to help you with this.

 

 

As to the neighbor - I would file a private criminal complaint for the filing of a false police report. I would notice the police that is what your intentions are if they once again come and bother you AND will pursue them in addition.

 

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