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3rd Circuit Holds 1st Amendment Right to Record Police

Wholly distinct from the Due Process right to record police, the 3rd Circuit Court of Appeals has held that citizens may assert a First Amendment right to do so as well. 

http://www2.ca3.uscourts.gov/opinarch/161650p.pdf


UCLA Professor Eugene Volokh sums it up here. 

 

 

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Another Top 10 Reasons to Remain SILENT

Another Top 10 Reasons to Remain SILENT

The Free Thought Project has published their own Top 10 Reasons to Not Talk to Police.  It's similar to my own list but this advice can't be given often enough.

Here is their list:

REASON #1: Talking to the police CANNOT help you.

REASON #2: Even if you’re guilty, and you want to confess and get it off your chest, you still shouldn’t talk to the police.

REASON #3: Even if you are innocent, it’s easy to tell some little white lie in the course of a statement.

REASON #4: Even if you are innocent, and you only tell the truth, and you don’t tell any little white lies, it is possible to give the police some detail of information that can be used to convict you.

REASON #5: Even if you were innocent, and you only tell the truth, and you don’t tell any little white lies, and you don’t give the police any information that can be used against you to prove motive or opportunity, you still should not talk to the police because the possibility that the police might not recall your statement with 100% accuracy.

REASON #6: Even if you’re innocent, and you only tell the truth, and your entire statement is videotaped so that the police don’t have to rely on their memory, an innocent person can still make some innocent assumption about a fact or state some detail about the case they overheard on the way to the police station, and the police will assume that they only way the suspect could have known that fact or that detail was if he was, in fact, guilty.

REASON #7: Even if you’re innocent, and you only tell the truth in your statement, and you give the police no information that can be used against you, and the whole statement is videotaped, a suspect’s answers can still be used against him if the police (through no fault of their own) have any evidence that any of the suspect’s statements are false (even if they are really true).

REASON #8: The police do not have authority to make deals or grant a suspect leniency in exchange for getting as statement.

REASON #9: Even if a suspect is guilty, and wants to confess, there may be mitigating factors which justify a lesser charge.

REASON #10: Even for a completely honest and innocent person, it is difficult to tell the same story twice in exactly the same way.

It's a good list.  Read the details here.

 MORE:

Why Do Innocent People Confess?

$teakley'$ Golden Rule$

Top 10 MORE Things Clients Do To Damage Their Cases

Top Ten Ways to Damage Your Criminal Case

Famous False Confession Cases

False Confessions Plague Criminal Justice System With Wrongful Convictions and Wrongful "Guilty" Pleas

The Sad Case of Lester Eugene Siler

Don't Talk To The Police - EVER!

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Recordings Cut Both Ways

Recordings Cut Both Ways

It difficult to make an argument against recording police-citizen encounters.   As I've said before, no one has anything to fear from it if they aren't doing anything wrong.  And as I've written about, there may be a Constitutional right to do it anyway, even if the police object.

More and more police departments are jumping on the bandwagon.  Here is a good example of how recordings can save an honest officer from baseless claims

 

Albuquerque Police Department union president Stephanie Lopez said in a statement to KOB, “The desire to frame officers for wrongdoing is a growing issue facing officers every day. We believe that the public should be held accountable for filing false reports against police officers. These incidents can be very damaging to an officer’s career, so we hope that this individual and others face appropriate consequences for their malicious actions.”

 

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Why Do Innocent People Confess?

Here's a long, thorough look at some of the reasons behind false confessions.  Let me reiterate that if people would just refuse to talk to the police at all, a false confession wouldn't be a possibility.  That's one of Steakley's Golden Rules.

On the other side of the equation, law enforcement agencies should adopt policies requiring the recording of interrogations whenever possible.

Full Article

After decades of resistance, even the FBI has finally agreed to start recording interviews.

 MORE:

False Allegations, Arrests, Confessions and Convictions

Another Top 10 Reasons to Remain SILENT

FBI To Finally Start Recording Interrogations

List of False Confession News

Top Ten Ways to Damage Your Criminal Case

Famous False Confession Cases

False Confessions Plague Criminal Justice System With Wrongful Convictions and Wrongful "Guilty" Pleas

Don't Talk To The Police - EVER!

 

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FBI To Finally Start Recording Interrogations

Most people are shocked to learn that the FBI has until this year refused to record investigations.  By not recording investigations, a jury will hear only the FBI agent's summary of what was said, not what was actually said, and that is how the FBI liked it. 

But things change.  The FBI says they will now start recording interrogations "when possible."   Now if only state and local law enforcement would follow suit, we would all be better off.

More here, and here.

Forbes has a long piece here.

MORE:

Don't Talk To The Police - EVER!

False Confessions Plague Criminal Justice System With Wrongful Convictions and Wrongful "Guilty" Pleas

Famous False Confession Cases

Top Ten Ways to Damage Your Criminal Case

List of False Confession News

Why Do Innocent People Confess?

Another Top 10 Reasons to Remain SILENT

False Allegations, Arrests, Confessions and Convictions

 

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Mass Man Arrested for Recording a Cop From His Own Porch

Mass Man Arrested for Recording a Cop From His Own Porch

Police in Massachusetts are at it again

FALL RIVER (CBS) – A Fall River man says he was recording a police officer who was out of control, but instead, he was arrested and his cell phone was seized.

Now the video he recorded is gone. Police say he erased it, even though they were the ones holding the phone.

Imagine that. 

George Thompson says last January he was just sitting on his front porch, watching a Fall River police officer working a paid detail. Thompson says the officer was on his phone and was swearing very loud.

That’s when Thompson pulled out his phone. Thompson says Officer Tom Barboza then rushed him and arrested him, charging him with unlawful wiretapping.

Note:  "sitting on front porch."  This guy is on his own property, not in public.  He's not interfering with anything or anyone.  But apparently, Officer Barboza didn't want to be recorded talking however he was talking to whoever he was talking to.

But in Massachusetts it’s perfectly legal to record video and audio of a public official, including police, as long as they are performing their duties and the recording isn’t hidden.

Even that is Constitutionally questionable.  If the person doing the recording is also the suspect being questioned, they may very well have a Due Process Right to record police, even secretly. 

“I think we all have our basic rights and I think people should not record others secretly or surreptitiously,” Fall River Police Chief Daniel Racine told WPRI.

Oh really?  Because police do that to people all the time.  That's why police departments are full of special interrogation rooms with hidden cameras. 

Thompson claims that two days after his arrest, his phone, which was locked up at the police station, somehow had all of the video erased.

Funny how that happens.

“If a Fall River police officer erased that video, he’s fired,” Chief Racine said. “And I would suspect the district attorney would take out charges.”

George Thompson is not buying it. “They’re investigating themselves and there’s a code of blue and everybody knows that,” Thompson says.

Nothing will happen.  There's no evidence who did or didn't erase the video and no one will confess to anything.  It's too bad that Mr. Thompson wasn't using my iphone app or the ACLU app or Eye Got You Covered.  If so, the video would be stored away safely out of police reach.

 

More:

http://baystateexaminer.com/man-sues-fall-river-police-officer-arrested-video-recording/

 

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Know Your Place, Citizen

Law enforcement is quick to post mugshots of people they arrest, even when those people are later found not guilty. But what happens when an arrestee posts a picture of the officer?  Well, that gets removed by court order.  Know your place, Citizen.   While the ACLU hypocritically refuses to advocate the Second Amendment, at least they will still fight for the First Amendment.

http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/03/31/you-cant-put-a-video-of-me-online-im-a-police-officer/

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Illinois Supreme Court Overturns Ban on Recording Public Officials

 

"The case involved Annabel Melongo, who was arrested for recording three telephone conversations with an assistant administrator at the Cook County Court Reporter's Office.  . . . . She was charged with six counts of eavesdropping in 2010 and spent 20 months in jail because she could not make bail. Her 2011 trial ended with a hung jury."

Kudos to the defendant for fighting back. 

 

 

 http://reason.com/blog/2014/03/20/illinois-supreme-court-unanimously-overt

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More People Are Recording The Police

More People Are Recording The Police

Recording police-citizen encouters favor the people who play by the rules and disfavors those who don't.  There are plenty of good police officers who have nothing to fear because they carry out their job with professionalism.  But then there are the ones that prefer to not be recorded because they fear being held accountable.  Those are probably the ones who need recorded the most.

For example, would you expect police harassment for washing your car in your driveway?  Most people wouldn't.  Most people wouldn't even believe it possible, but thanks to modern technology we see that it is

In the movies, when police come calling, the ordinary citizen has two options: quake or pull out a gun.

In recent time, however, people have realized that they have a third, quite potent option: the cell phone.

They know that if they can film the experience, disbelief will have to be suspended, because the evidence is all too clear.

The latest example of a seemingly innocent man encountering a peculiar visit from a policeman comes from Long Island.

What the filmed evidence seems to show is a policeman wandering onto the man's private driveway and suggesting that it's illegal to wash his car there.

This is a subject I've addressed before.  I think you can record the police in any public space so long as you don't interfere with their job.  I also think that you have a Constitutional right to record your conversations even in a private place when you are the suspect.   Read more below:

Recording Conversations in Georgia

Will They Ever Learn? (Cont'd)

$25,000 For Woman Arrrested For Recording Police

Mistrial for Cop Accused of Recording Judge in Maryland

County Pays $645,549 To ACLU For Unconstitutional Prosecutions

Half of Americans Now Have Smartphones

CopBlock.org Founder Adam Mueller Appeals Convictions

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Will They Ever Learn? (Cont'd)

Two Omaha police officers are facing serious charges because of their reaction to being legally recorded by a bystander, reports KMTV.

Former officer James Kinsella will be charged with felony tampering with evidence, and two misdemeanor charges of obstructing governmental operations and theft by unlawful taking.

Former Sgt. Aaron Von Behren will face misdemeanor charges of accessory to a felony and obstructing governmental  operations.

Both officers as well as two others involved in the incident have been fired from the police force.

A YouTube video that KMTV Action 3 News first aired on March 21st shows a police officer taking down Octavius Johnson during a dispute over parking near 33rd and Seward.

His brother, Juaquez Johnson was recording the incident near the curb when officers chased him into his house.

The police captured Juaquez and apparently destroyed the video.  It has never been found.  So while the police were able to run down Juaquez, steal his phone, and destroy the evidence, they failed to notice the guy across the street who was also recording the scene from inside his home. 

These officers have lost their careers and may lose their freedom because they didn't want to be recorded in a public place.  They successfully captured and destroyed the recording they knew about, but they failed to notice the guy across the street. 

All of the officers in this department need to be educated about the right of citizens to record the goings-on of police officers in public places, as well as how costly it can be when the police infringe upon this right.  And of course, A Due Process Right To Record Police should be required reading. 

Related:

The Sad Case of Lester Eugene Siler

$25,000 For Woman Arrrested For Recording Police

Some Cops Never Learn

For Georgia cases, see Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000).

 

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$25,000 For Woman Arrrested For Recording Police

$25,000 For Woman Arrrested For Recording Police

In another installment of "Will They Never Learn?" the taxpayers of Salisbury, NC, have had to shell out money to an innocent woman wrongfully arrested for the completely legal act of recording the police in a public place: 

The case began in 2009 when Felicia Gibson maintained that Salisbury Police Officer Mark Hunter had no right to come into her house and arrest her as she watched an unrelated traffic stop take place in front of her house.

After two days of testimony Judge Beth Dixon ruled that Gibson was guilty in that she had interfered with Officer Hunter's ability to do his job in dealing with the traffic stop. Gibson had posted a video of the incident on YouTube.

. . .

The incident happened with a traffic stop near 819 W. Fisher St. The traffic stop was the end of a chase in which drugs and gun were found and two suspects ran from police.

At one point, Officer Mark Hunter notices people standing on the porch of Gibson's home, including Felicia Gibson, her father, and a neighbor, and orders them inside.

Hunter then arrested Gibson, charging her with resisting arrest and obstructing an officer.

In court during the original trial, Gibson's lawyer argued that only 10 seconds elapsed from Hunter's command for her to get in the house, and for him to cross the 40 feet from the street and arrest her.

The attorney said her constitutional rights were violated and that Gibson has a right to stand on her own front porch and watch police officers doing their jobs.

Agreed.  The settlement is a little small, but nevertheless it proves the point that arresting people for filming police in a public place is not a good idea for the police.

I have only one gripe, though:  I think any settlement should include mandatory re-training of the officers with required reading of A Due Process Right To Record the Police followed by a test on the subject.

Acknowledgments to Carlos Miller of Photography Is Not A Crime for alerting me to this.

If you have an iPhone, my iPhone app will allow you to record the police and send it to me before the police have a chance to snatch your phone and delete it.  Check it out. 

For Georgia cases, see Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000).

Don't miss a single post! To be alerted when a new blog post appears (about every other day or so), click on "Subscribe to Blog" near the top of this page.

 

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Mistrial for Cop Accused of Recording Judge in Maryland

This is outrageous.  Not only should it not be a crime for this officer to record his warrant applications, it should be REQUIRED that warrant applications be recorded for later review by higher courts.  I hope they never convict this officer of anything.

For Georgia cases, see Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000).

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County Pays $645,549 To ACLU For Unconstitutional Prosecutions

County Pays $645,549 To ACLU For Unconstitutional Prosecutions

Taxpayers in Illinois are on the hook for more cop/prosecutorial abuse of people who record the police in public:

In 2012, Illinois saw a rash of cases involving the Illinois Eavesdropping Act, which forbade making audio or visual recordings of people without explicit consent from everyone in the recording. In practice, the law made recording on-duty police officers a felony in the state. The prosecutions of citizens that ensued prompted the ACLU to challenge the state's Eavesdropping Act, and it was eventually ruled unconstitutional on First Amendment grounds in the US Seventh Circuit Court of Appeals.

In 2010, the [ACLU] group brought a case against Cook County State's Attorney Anita Alvarez, who had been prosecuting ACLU staff members for recording on-duty police officers. . . . And now this month, the judge ruled that Cook County taxpayers must foot the $645,549 legal bill the ACLU racked up. 
 
“The Illinois Eavesdropping Act... violates the First Amendment of the United States Constitution as applied to the open audio recording of the audible communications of law enforcement officers (or others whose communications are incidentally captured) when the officers are engaged in their official duties in public places,” a January ruling by Judge Sharon Johnson Coleman read. 

Entire article here.  

In addition to paying the ACLU legal bills, I think the prosecutors and police officers involved should be assigned some homework about A Due Process Right to Record Police.  It should be required reading in police academies and prosecutor conferences. 

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Charges Dropped Amid Claims of Planting Evidence

Charges Dropped Amid Claims of Planting Evidence

This is one of those cases where the innocent vitim is very luck to have been sitting in view of a camera, and the cops not realize otherwise.

A man who claims a police officer planted drugs on him will have the charges dismissed one day before his case was set to go to trial.

Eleby said his nightmare began in July 2012 at the Chevron gas station on North Hairston Road.

He said he stopped to speak to someone who was sitting in a black SUV when an officer said he smelled marijuana and arrested the driver on charges of marijuana possession with intent to distribute.

"I was searched twice," Eleby said. He said no drugs were found on him and he was told to sit down.

His attorney said surveillance video from the location shows the officer call the officer guarding Eleby over to the SUV he had been searching.

As she searches the vehicle, Zenobia Waters said the video shows the officer circle back to her client and toss marijuana next to him. She said the officer then picks the drugs up and repositions them.

The video shows Eleby vehemently protesting what he sees the officer do and the officer then puts him in a chokehold while other officers look on.

Chokehold.  A chokehold because he complained about being framed. 

"The DeKalb County Police Department could not produce the alleged marijuana. Therefore, the State is without the evidence needed for trial. The dismissal is not related to how the alleged marijuana came into existence at the scene of the crime nor the videotape made at the scene of the crime."

I've heard stories that some cops drive around with an exta baggie of cocaine or mairjuana in their trunk that they can throw down by a suspect when they need to make a case.  The missing marijuana is probably already back in the officer's trunk helpking him make more cases. 

Without the video, it would be his word against at least two officers in front of a jury pool with at least a few people who think that anyone accused of a crime must be guilty of something.  He should have pulled out his cell phone and started recording.   That would have made some good, embarrasing YouTube video for this cop. 

Full article here.

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Half of Americans Now Have Smartphones

Half of Americans Now Have Smartphones

Apparently we are at the 50% mark of citizens that have smartphones (mostly iOS, Android, and Windows).  I imagine almost all of those telephones have the ability to record audio and video in better quality than digital cameras could just a few years ago. 

With the rise of cameras in everyone's pocket, I anticipate we will see more and more conflict between citizens who want to film the police and the police who do not wish to be filmed.  As a general rule, anyone can film anything in public, so long as they aren't causing a problem by doing so.  Your rights to film in public do not includ the right to film from the middle of the street at rush hour, for example. 

For my work and thoughts on the issue, look here and here.   As always, if you find yourself in a bind because you recorded an officer, give us a call.

Some Cops Never Learn

The Sad Case of Lester Eugene Siler

CopBlock.org Founder Adam Mueller Appeals Convictions

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CopBlock.org Founder Adam Mueller Appeals Convictions

CopBlock.org co-founder Adam Mueller was convicted of felony wiretapping in connection with recorded calls to school and police officials about the arrest of a student at Manchester High School West in New Hampshire.  He has appealed to the New Hampshire Supreme Court

This shouldn't even be a crime.  His biggest problem, though, was that he made the horrible mistake of representing himself: 

Ten days after his August trial, he mailed a motion to the court, seeking to have the verdict set aside or reversed, the charges dismissed with prejudice, the conviction vacated and his release ordered, or, alternatively, a new trial ordered and the remaining sentence stayed. He argued he had been confined in jail, without access to legal materials, and that is why he hadn't filed the motion sooner.

The prosecution objected to the motion and the judge denied it, saying it was not filed within the required seven days and that Mueller himself had requested immediate sentencing after the verdict was returned, and Mueller is an "experienced pro se litigator and knows the rules."

The fact that he has been in court before doesn't mean he "knows the rules" or that he's a lawyer.  Rather, this is a good example of how just because someone represents themselves, it doesn't mean that the court will bend the rules to accomodate them.  He seems like a smart guy and smart guys often convince themselves that they can sit through a Law & Order marathon and then go try their own case to a jury.  That's not how it works. 

Representing yourself is always a bad idea. Worse, this guy may have had a Constitutional claim that he failed to raise and is now likely prohibited from raising. (See my Washington University Law Review article on the subject of recording the police with Professor Glenn Reynolds of Instapundit.com)

 

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Elderly Couple Stopped, Interrogated for Buckeye

Elderly Couple Stopped, Interrogated for Buckeye

A couple of senior citizens driving through Tennessee were stopped and interrogated for being Ohio State fans: 

Bonnie Jonas-Boggioni, 65, and her husband were driving home to Plano, Texas from Columbus after attending her mother-in-law’s funeral when a pair of black police SUV’s stopped the couple a few miles outside of Memphis.

Apparently, Bonnie Jonas-Boggioni, former president of the Ohio State Alumni Club in the Dallas-Fort Worth area, had an Ohio State Buckeye football decal on her vehicle.  Police mistook it for a marijuana leaf. 

They were very serious,” she said. “They had the body armor and the guns.”

Because the couple’s two schnauzers were barking furiously, one of the officers had Jonas-Boggioni exit the car so he could hear her better.

“What are you doing with a marijuana sticker on your bumper?” he asked her.

She explained that it is actually a Buckeye leaf decal, just like the ones that Ohio State players are given to put on their helmets to mark good plays.

“He looked at me like I was speaking a foreign language,” she said.

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Why Police Lie In Court

Why Police Lie In Court

In an interesting article in the New York Times, writer Michelle Alexander lays out examples of police lying under oath and to prosecutors about the circumstances (and legality) of arrests, even for small offenses.  What starts out sounding like another tired story about race and class offers up a much more compelling reason why police may not always tell the truth:  Money.

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Famous False Confession Cases

I've written elsewhere in the blog about false confessions, but most people don't realize there are some very famous cases involving false confessions, including the Lindbergh Baby, the Black Dahlia, the "Central Park Jogger" cases from the 1980's, and Atlanta's own John Mark Carr

Police are trained in getting people to talk.  Sometimes, they do their job too well, getting people to confess to things they didn't do.  Most people think of torture and physical abuse when they think about making someone admit to a crime they didn't commit, but police tactics can be much more subtle.

Using techniques as subtle as where they sit you in the room to more cliche techniques like "Good Cop / Bad Cop", police can often pressure people into talking.  "Pressure" may not even be the best word, as the initial attempt is usually to make the subject feel very comfortable and safe talking to the officer.

But how do the police give people the information the people need to sound guilty?  Police can, accidentally or intentionally, "seed" or "plant" facts and information into the conversation that the target picks up as their own information.  If it is a case that has been in the news, it's not hard to gleen facts or fill in blanks to make a story seem like it's coming from someone who was there for the crime.

False confessions lead to false guilty pleas.  Of the people exonorated by DNA, some of them pled guilty!  Why plea to a crime they know they didn't commit?  Often it is to avoid the death penalty or a lifetime in prison (as opposed to decades). 

The points to take from this are that just because someone confesses doesn't mean they are guilty.  Just because they plea guilty doesn't mean they are.  All this trouble starts with people talking to the police on their own without a lawyer present, so NEVER DO IT.

 

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The Sad Case of Lester Eugene Siler

The Sad Case of Lester Eugene Siler

Before I moved to Georgia in 2001, I was an Assistant District Attorney General in the Eighth Judicial District of Tennessee.  It is a sprawling 5-county district in two different time zones, but most of my work was in the largest county of Campbell.  When I say "large", I'm talking about maybe 45,000 people, or about 1/15th the size of Cobb County or Gwinnett County, and 1/20th the size of Fulton County of Dekalb County.  Everyone knows everyone else, pretty much.  There's one main high school, one Wal-Mart, one McDonalds.  You can't go to either without seeing someone you know.  So when I became a prosecutor, I already knew many of the cops and had gone to school with many of them. 

Not long after leaving the office five years later, news broke that five officers had been arrested for torturing a local small-time drug dealer named Lester Siler.  I didn't think much of it until I leared that there was a recording.  Apparently, Siler's wife had hidden a recorder when she saw the police approaching the house.  What happened next was awful and heartbreaking.  They threatened and mistreated Siler in order to get him to sign a form consenting to the search of his house, but in the recording you can already hear them beginning to search.

The police would later be arrested and prosecuted federally.  Most or all served prison time.  When I read the transcript of them torture and threaten a guy to sign a document consenting to a search of his house, I wonder in how many more "consent" searches and "voluntary" confessions that were actually the result of torture came across my desk? I have no idea.

Except for Siler's wife recording the event, no one would know about it.  I wouldn't be writing about Lester Siler and you wouldn't be reading about him.  It would be just another drug case where the police claim that the homeowner consented to a search of his home and signed a document saying so.    Even if Siler said otherwise, no one would have believed him.

If you have contact with the police in Georgia, record it.  It can't hurt, and it may help.

John

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