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Question reguarding probable cause for arrest

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catchmeifyoucan

Junior Member
(Grand Larceny) Question reguarding probable cause for arrest

What is the name of your state (only U.S. law)? Virginia

I have recently been approached by an investigator regarding a stolen laptop from a house. My brother is the one who stole it but i have priors for larceny so they suspect me and not my brother. The only evidence they have is 2 people from the same household saying they saw a guy matching my description walking down the road with a laptop in his hand on the day this happened. Also they have me on recording saying i know who took it. This is all they have period.

i told him to put me in a lineup and see what these supposed witnesses say reguarding my appearance.

"You may be arrested for a felony, even if the police officer did not personally see you commit the felony, so long as the officer had "probable cause" to believe that the crime was committed by you"


so my question is: Is the above enough for probable cause for them to arrest me or not? i will not snitch on my brother, so i'm wondering if they can arrest me and have me sit in jail until the whole court process is over?
 
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catchmeifyoucan

Junior Member
ok but do you think with the above evidence that it would be enough to prove it beyond a reasonable doubt? you think a prosecutor would want to go to trial with that little evidence?

what i'm getting at is when its all said and done do you think it would yield a guilty conviction? or do you think i would get a nice ass plea deal?

to me the statements seem like hearsay, and the fact that i said i know who did it doesn't make me guilty of the crime. all i know is i need some good advice because I'll do time for my brother but there is a limit as to how far i'm willing to go for him. the main reason is cuz he has a kid on the way.
 

CdwJava

Senior Member
What is the name of your state (only U.S. law)? Virginia

I have recently been approached by an investigator regarding a stolen laptop from a house. My brother is the one who stole it but i have priors for larceny so they suspect me and not my brother.
Either your brother is a better thief than you are, or you're darn unlucky.

It also sounds like you are more loyal to him than he is to you. If he is letting YOU go down for HIS crime, what does that say about his loyalty?

The only evidence they have is 2 people from the same household saying they saw a guy matching my description walking down the road with a laptop in his hand on the day this happened. Also they have me on recording saying i know who took it. This is all they have period.
How do you KNOW that is all they have? I'll let you in on something - the police do not make a habit of laying all their evidence on the table to a suspect!

And if they have you on a recording admitting to knowing who took the item, and a description of you with a laptop (possibly affirmed by a photo lineup), then that could certainly be enough to get a search warrant, or even make an arrest.

Are you willing to risk jail to protect the person who took it? And what was your involvement? Depending on what your involvement was, you can be charged with additional crimes under the right set of facts.

i told him to put me in a lineup and see what these supposed witnesses say reguarding my appearance.
They may have already done that via photo. Live lineups are not all that common in the real world.

"You may be arrested for a felony, even if the police officer did not personally see you commit the felony, so long as the officer had "probable cause" to believe that the crime was committed by you"
That's about right.

so my question is: Is the above enough for probable cause for them to arrest me or not? i will not snitch on my brother, so i'm wondering if they can arrest me and have me sit in jail until the whole court process is over?
We don't know what the police have, so we can't say whether they have sufficient probable cause.

And if you and your brother are both thieves, that doesn't say much about your respective futures. Hopefully one or both of you opens their eyes and sees the light before you are both institutionalized for the long term.
 

tranquility

Senior Member
Not only do I agree with Carl, but also address the hearsay issue. The party opponent and statements against interest are both reasons it might get in.
 

Ohiogal

Queen Bee
ok but do you think with the above evidence that it would be enough to prove it beyond a reasonable doubt? you think a prosecutor would want to go to trial with that little evidence?

what i'm getting at is when its all said and done do you think it would yield a guilty conviction? or do you think i would get a nice ass plea deal?

to me the statements seem like hearsay, and the fact that i said i know who did it doesn't make me guilty of the crime. all i know is i need some good advice because I'll do time for my brother but there is a limit as to how far i'm willing to go for him. the main reason is cuz he has a kid on the way.
You are guilty -- an accessory after the fact. So that does make you guilty of the crime your brother committed. Since you have a history, you may get sentenced to maximum time for this crime. And yes a prosecutor very well may go to trial with your admission. Why? Because it shows that YOU are guilty. You admitted it. Hence, he has a confession. And hearsay -- the statement is a hearsay exception due to the fact that it is a statement against interest. Oh and you won't be serving your brother's time. You will be serving YOUR time. Your brother could still face charges. The only way you might get a plea is by telling the truth and testifying against your brother.
 

tranquility

Senior Member
You are guilty -- an accessory after the fact. So that does make you guilty of the crime your brother committed. Since you have a history, you may get sentenced to maximum time for this crime. And yes a prosecutor very well may go to trial with your admission. Why? Because it shows that YOU are guilty. You admitted it. Hence, he has a confession. And hearsay -- the statement is a hearsay exception due to the fact that it is a statement against interest. Oh and you won't be serving your brother's time. You will be serving YOUR time. Your brother could still face charges. The only way you might get a plea is by telling the truth and testifying against your brother.
I don't see where the OP admitted taking the computer. He says he knows who did it. Not telling what you know is not actively concealing something with an affirmative act. I don't think he is an accessory under our facts. (Not that I am happy with that fact.) Also, I believe the primary crime must have a conviction or be tried together before we can have an "accessory" to the crime.
 

Ohiogal

Queen Bee
I don't see where the OP admitted taking the computer. He says he knows who did it. Not telling what you know is not actively concealing something with an affirmative act. I don't think he is an accessory under our facts. (Not that I am happy with that fact.) Also, I believe the primary crime must have a conviction or be tried together before we can have an "accessory" to the crime.
He is an accessory after the fact because he is concealing this information even though asked. He is therefore committing an affirmative act by refusing to reveal who the actual thief is. And no, the primary crime does NOT have to have a conviction or be tried together.
 

catchmeifyoucan

Junior Member
so what your saying is the 2 witnesses who said they saw a tall blonde walking down the street would not be sufficient evidence for a conviction correct?

But the fact that i said on recording that i know who did steal the item make's me guilty? how can i face time just for saying i know who did it?


if anyone can elaborate here that would be much appreciated.



so if i see a guy shoot another guy, and i say i saw who it was but don't give a name they can charge me for accessory to murder after the fact? i know its on 2 ends of the spectrum but its the same scenario. any and all advice is apreciated
 
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tranquility

Senior Member
He is an accessory after the fact because he is concealing this information even though asked. He is therefore committing an affirmative act by refusing to reveal who the actual thief is. And no, the primary crime does NOT have to have a conviction or be tried together.
It is not an affirmative act to refuse to speak in this instance. Now, he could get in trouble later if he fails to testify or lies and says he knows nothing of the crime. But, not telling what you know is not a crime here. I don't see an easy case in Virgina so could be wrong, but I thought this was pretty black letter law stuff. For instance:
http://goo.gl/FtMbOj
and Illinois v. Miriconi 4th appellate No. 09CF770 (2011) [http://www.state.il.us/court/R23_Orders/AppellateCourt/2011/4thDistrict/4100475_R23.pdf]
� 60 Indeed, we have held that merely keeping quiet about a crime is not "conceal[ing
one's] knowledge that an offense has been committed," within the meaning of section 31-5 (720
ILCS 5/31-5 (West 2008)). Donelson, 45 Ill. App. 3d at 610. Otherwise, to avoid committing the
felony of concealing a fugitive, everyone would have to call the police every time they witnessed
a misdemeanor, such as speeding. Id.at 612. Because it would be unreasonable to suppose that the
legislature intended to create such an oppressive system (id.) and because, at common law, a person
did not become an accessory after the fact merely by remaining silent about an offense (id.at 610),
"conceal[ing one's] knowledge that an offense has been committed" must mean an "affirmative act
of concealment" (id.at 611).� 61 What does it mean to "affirmatively concealone's knowledge that an offense has been
committed"? The only way to do so is to lie about one's knowledge of the offense. An affirmative
(as opposed to a passive) concealment of one's own knowledge is a lie. United States v. Weekley,
389 F. Supp. 2d 1293, 1301 (S.D. Ala. 2005) (interpreting the federal misprision of felony statute
(18 U.S.C. � 4 (2000))); Donelson, 45 Ill. App. 3d at 611 (reasoning by analogy to cases interpreting
the federal misprision of felony statute). A lie misrepresents, and thereby affirmatively conceals,
what one knows. If, instead of keeping quiet, a person makes a statement and, in so doing, lies to
the police about what he or she knows regarding an offense, that person commits an affirmative act
- 18 -
of concealment. See People v. Brogan, 352 Ill. App. 3d 477, 495 (2004)(upholding the defendant's
conviction of concealing a fugitive, because, among other reasons, "the defendant's representations
to Sergeant Black reach[ed] far beyond a passive nondisclosure of the events of that evening and
into a full-fledged misrepresentation of what transpired").
� 62 Surely, most would agree that lying isan affirmative act and that denying knowledge
of an offense when in fact one knows something about an offense is a lie�and, as such, an
affirmative concealment of one's own knowledge. Nevertheless, some opinions of the appellate
court suggest that a false denial of knowledge does not qualify as an affirmative act of concealment.
People v. Hammond, 214 Ill. App. 3d 125, 134 (1991); People v. Thomas, 198 Ill. App. 3d 1035,
1037-38 (1990). This view rests ultimately on a misinterpretation and misapplication of People v.
Vath, 38 Ill. App. 3d 389 (1976). See Thomas, 198 Ill. App. 3d at 1038) (citing Vathin support of
the suggestion that the defendant "could have [falsely] denied any knowledge whatsoever of the
identity of the shooter" without incurring criminal liability for concealing a fugitive).
http://legal-dictionary.thefreedictionary.com/Misprision+of+felony
Almost every state has rejected the crime of misprision of felony. Thus, persons are under no duty to report a crime. One policy reason for rejecting misprision is that the crime is vague and difficult to apply to real situations. Another reason is that the crime is seen as an unacceptable encroachment on civil freedom. In 1822 the U.S. Supreme Court cautioned against misuse of the misprision of felony statute, stating, "It may be the duty of a citizen to � proclaim every offense which comes to his knowledge; but the law which would punish him in every case, for not performing this duty, is too harsh" (Marbury v. Brooks, 20 U.S. [7 Wheat.] 556, 5 L. Ed. 522).

The Supreme Court has not completely abandoned the duty to report criminal activity. In Roberts v. United States, 445 U.S. 552, 100 S. Ct. 1358, 63 L. Ed. 2d 622 (1980), the High Court held that a court can increase a criminal defendant's sentence if the defendant refuses to cooperate with government officials investigating a related crime. Also, a journalist who has knowledge of a crime may be compelled to reveal the source of that knowledge (Branzburg v. Hayes).

The federal misprision of felony statute remains on the books, but the crime rarely has been prosecuted. On the state level, most states have either abolished or refused to enact misprision of felony laws. South Carolina is the only state that has prosecuted the misprision of a felony.

In State v. Carson, 262 S.E.2d 918, 274 S.C. 316 (1980), Isaac E. Carson, the Eyewitness to a murder, refused to give law enforcement authorities information regarding the murder because he feared for his life if he cooperated with authorities. Carson was prosecuted and convicted of misprision of felony and sentenced to three years in prison.

The prosecution of Carson was based on the Common Law. South Carolina did not have a misprision of felony statute. Instead the prosecution relied on title 14, chapter 1, section 50, of the Code of Laws of South Carolina. Under this statute the common law of England continues in effect in South Carolina. On appeal by Carson, the Supreme Court of South Carolina affirmed the conviction. According to the court, the prosecution was valid because misprision of felony was a crime at common law in England and because the South Carolina legislature had not taken steps to repeal the common-law crime of misprision of felony.

The crime of misprision of felony is similar to the crime of acting as an Accessory after the fact because both crimes involve some affirmative act to conceal a crime. Two basic differences are that the crime of misprision is committed even if the defendant does not give aid to the criminal and misprision is committed only if the underlying crime is completed.
Finally, we have a specific problem when we look to VA's statutes:
� 18.2-19. How accessories after the fact punished; certain exceptions.

In the case of every felony, every accessory after the fact shall be guilty of a Class 1 misdemeanor; provided, however, no person in the relation of husband or wife, parent or grandparent, child or grandchild, brother or sister, by consanguinity or affinity, or servant to the offender, who, after the commission of a felony, shall aid or assist a principal felon or accessory before the fact to avoid or escape from prosecution or punishment, shall be deemed an accessory after the fact.
 

CdwJava

Senior Member
He is an accessory after the fact because he is concealing this information even though asked. He is therefore committing an affirmative act by refusing to reveal who the actual thief is. And no, the primary crime does NOT have to have a conviction or be tried together.
I suppose that must be state dependent. Merely declining to reveal who he believes is the suspect is not necessarily a crime ... it wouldn't be in my state.
 

catchmeifyoucan

Junior Member
so now that i know saying that "i know who stole it" isn't a crime.

would the 2 witnesses who saw a white blonde male be enough for a prosecutor to pursue a conviction? i know it's an opinionated question but still. im nervous over here, but at the same time i love my brother.

thanks for all the advice so far, its much appreciated.
 

CdwJava

Senior Member
so what your saying is the 2 witnesses who said they saw a tall blonde walking down the street would not be sufficient evidence for a conviction correct?
And you KNOW this is ALL they said ... how?

As I mentioned, the police do not make a habit of telling suspects what their evidence is.

But the fact that i said on recording that i know who did steal the item make's me guilty? how can i face time just for saying i know who did it?
It provides some evidence of knowledge of the crime. When coupled with other facts, this could result in you being charged if your state acknowledges you as an accessory for concealing this information, or they can place you at the scene and perhaps as a principal to the offense.

so if i see a guy shoot another guy, and i say i saw who it was but don't give a name they can charge me for accessory to murder after the fact?
Quite possibly.

As of right now, you honestly do not know how much or how little the police know about your involvement. Apparently you are a convicted thief, and your brother is an up-and-coming thief ... you can probably expect many more police contacts in the months and years to come.
 

catchmeifyoucan

Junior Member
i know what the statements are, he let me read them (with the name of the individual blacked out)

there is no fingerprints or any of that, just statements and me saying i know who it was. The investigator played the " i have a fingerprint, but it takes months to get results" which is a lie because #1 i didn't take it & #2 my prints are in the system so if im the prime suspect then all it takes is a simple comparison of mine vs. the one that was supposedly found.

im certain that is all they have by the way he was badgering me on that day. they needed me to confess, they even tried to tell me " if you give it back, or give it to me to return to the owner; i will talk to the prosecutor and your PO to make sure they know you did the right thing" the investigator was desperate for some kind of admittance. This is how im certain they are fishing for a confession.


And for the record i have a B & E as well as a petit larceny on my record back from 4 years ago. i was homeless, out of a job and i made a bad decision. As i said my brother has no job right now and a baby on the way, he knows he ****ed up but i understand why he did it.
 
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latigo

Senior Member
Either your brother is a better thief than you are, or you're darn unlucky.

It also sounds like you are more loyal to him than he is to you. If he is letting YOU go down for HIS crime, what does that say about his loyalty?


How do you KNOW that is all they have? I'll let you in on something - the police do not make a habit of laying all their evidence on the table to a suspect!

And if they have you on a recording admitting to knowing who took the item, and a description of you with a laptop (possibly affirmed by a photo lineup), then that could certainly be enough to get a search warrant, or even make an arrest.

Are you willing to risk jail to protect the person who took it? And what was your involvement? Depending on what your involvement was, you can be charged with additional crimes under the right set of facts.


They may have already done that via photo. Live lineups are not all that common in the real world.


That's about right.


We don't know what the police have, so we can't say whether they have sufficient probable cause.

And if you and your brother are both thieves, that doesn't say much about your respective futures. Hopefully one or both of you opens their eyes and sees the light before you are both institutionalized for the long term.
Assume that the brother is eventually apprehended and convicted of the felony.

Could the OP’s refusal to name the thief yet admitting to the police that he knew his identity be reasonably construed as assisting his brother in order to hinder his apprehension thus making him an accessory after the fact?

Or would it require some overt act upon the part of the OP?
 

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