Car Search

[derpa]

do you realize that lying to an investigating officer is obstruction of justice and can be prosecuted?

Ok. That's alright.

 

[justalayman]

enjoy parking anywhere OTHER THAN the parking lot at school.

 

[CdwJava]

A question: Since we're not talking about any member of the LE community asking to search OP's car, does this even fall under "illegal search"????

(Cuz I don't think so.)

Since they asked for consent and did not conduct a search absent said consent, nothing illegal happened.

 

[CdwJava]

Hang on. That wasn't a confession by me that I've had any artifacts in my car.

*I* didn't say you had it in your car, but it seems clear that you were involved or at least offered support, grins, and giggles.

 

[CdwJava]

If it wasn't an "illegal search". It still wasn't required by school rules.

And I doubt that the school rules state that you SHALL be issued a parking permit. I suspect that the rules might also say that the school reserves the right to revoke the permit at any time. But, that all depends on how well written the policy is and how far you (or, rather your parents) are willing to go in fighting it. Are mommy and daddy willing to spend a few grand on an attorney so that you can park on campus?

Understand that if you raise too big a stink, the cops just might investigate this prank for what it is - theft, and possibly a burglary. And that could land you you and your cohorts in even hotter water. Be careful of the attention you might want to bring on yourself and your pals ... you might get it.

 

[tranquility]

I always stop short of confessing to things I didn't do.

Loaded? Where's the evidence?

Evidence is for court or if the AP tried to remove a right like being able to attend school. (Aka suspension or expulsion.) To remove a privilege, all he needs is to decide to do so.

And, yes, it can still be theft even if the removal might be intended to be temporary.

I thought that is why they made "joyriding" laws(aka taking or tampering), because it is not car theft if there is not intent to permanently deprive the owner thereof. While the statutes don't seem to use the term, the court and jury instructions still include it. Are you sure there is no need to have the specific intent to permanently deprive the owner thereof for any theft/larceny?

The jury instruction for theft regarding the intent:

3. When the defendant took the property (he/she) intended (to
deprive the owner of it permanently/ [or] to remove it from the
owner�s [or owner�s agent�s] possession for so extended a period
of time that the owner would be deprived of a major portion of
the value or enjoyment of the property);

In the bench notes:

The court has a sua sponte duty to give an instruction defining the elements of the
crime.
To have the requisite intent for theft, the defendant must either intend to deprive
the owner permanently or to deprive the owner of a major portion of the property�s
value or enjoyment. (See People v. Avery (2002) 27 Cal.4th 49, 57�58 [115
Cal.Rptr.2d 403, 38 P.3d 1].) Select the appropriate language in element 3.

Authority:

Intent to Deprive Owner of Main Value. People v. Avery (2002) 27 Cal.4th 49,
57�59 [115 Cal.Rptr.2d 403, 38 P.3d 1], disapproving, to extent it is
inconsistent, People v. Marquez (1993) 16 Cal.App.4th 115, 123 [20 Cal.Rptr.2d
365]; People v. Zangari (2001) 89 Cal.App.4th 1436, 1447 [108 Cal.Rptr.2d
250].

But, I agree with the thought the AP was not just acting on a hunch.

 

[tranquility]

do you realize that lying to an investigating officer is obstruction of justice and can be prosecuted?

I don't think the lying to the AP would be a crime. If proven, it would be enough to lose some education rights, but I don't think it would be criminal.

 

[derpa]

*I* didn't say you had it in your car, but it seems clear that you were involved or at least offered support, grins, and giggles.

Grins and giggles, sure. Along with hundreds of others.
Yes, the rules do basically say they can revoke the permit, but I still thought they would need a reason.

You all think I did it. Ok, fine. Here's how it went down.
We went and got the artifact. On the way back I sped. I followed too closely. I ran a stop sign. I almost hit a Chevy. I sped some more. I failed to yield at a crosswalk. I changed lanes at the intersection. I changed lanes without signaling while running a red light and speeding
And I have unpaid parking tickets.
So I was a little nervous about talking to the AP about anything.

 

[Silverplum]

Grins and giggles, sure. Along with hundreds of others.
Yes, the rules do basically say they can revoke the permit, but I still thought they would need a reason.

You all think I did it. Ok, fine. Here's how it went down.
We went and got the artifact. On the way back I sped. I followed too closely. I ran a stop sign. I almost hit a Chevy. I sped some more. I failed to yield at a crosswalk. I changed lanes at the intersection. I changed lanes without signaling while running a red light and speeding
And I have unpaid parking tickets.
So I was a little nervous about talking to the AP about anything.

Okey-dokey.

 

[justalayman]

I don't think the lying to the AP would be a crime. If proven, it would be enough to lose some education rights, but I don't think it would be criminal.

did I say it was?

I don't think so.

 

[justalayman]

Grins and giggles, sure. Along with hundreds of others.
Yes, the rules do basically say they can revoke the permit, but I still thought they would need a reason.
.

He had a reason; you pissed him off. Now look in the rule book to see if that is not an allowed reason. If you don't find it excluded as an acceptable reason, well, we are where we are.

 

[CdwJava]

Evidence is for court or if the AP tried to remove a right like being able to attend school. (Aka suspension or expulsion.) To remove a privilege, all he needs is to decide to do so.

I thought that is why they made "joyriding" laws(aka taking or tampering), because it is not car theft if there is not intent to permanently deprive the owner thereof. While the statutes don't seem to use the term, the court and jury instructions still include it. Are you sure there is no need to have the specific intent to permanently deprive the owner thereof for any theft/larceny?

I understand where you're coming from, but I do not think the intent was to allow for the free borrowing of other's property.

And VC 10851 requires that the intent be to permanently or temporarily deprive the owner of the vehicle.

Okay, if the intent was not to deprive permanently or to deprive him of a major portion of its value or enjoyment, consider the logical extension of this concept of glorified borrowing ...

I go to WalMart and want to watch the Superbowl. I take a TV set ... but, I intend to return it - I just want to watch the Superbowl. By this borrowing concept, I shouldn't be charged with a crime.

Such an interpretation would turn PC 484 on its ear and effectively eliminate this as a crime. All a defendant would have to say is that he intended to bring it back, and depending on what was stolen that could very well be viable.

 

[stealth2]

Wow - this boy's parents coached him well. SMH.

 

[tranquility]

I understand where you're coming from, but I do not think the intent was to allow for the free borrowing of other's property.

And VC 10851 requires that the intent be to permanently or temporarily deprive the owner of the vehicle.

Okay, if the intent was not to deprive permanently or to deprive him of a major portion of its value or enjoyment, consider the logical extension of this concept of glorified borrowing ...

I go to WalMart and want to watch the Superbowl. I take a TV set ... but, I intend to return it - I just want to watch the Superbowl. By this borrowing concept, I shouldn't be charged with a crime.

Such an interpretation would turn PC 484 on its ear and effectively eliminate this as a crime. All a defendant would have to say is that he intended to bring it back, and depending on what was stolen that could very well be viable.

Such an interpretation has been the law as long as there has been the "common" law. You'd think criminals would have figured out that all they have to do is say they were just borrowing it in the last few hundred years or so. Well, unless it isn't true. However, to the specific WalMart example, from Criminal Law (LaFave):

One who takes another's property intending at teh time he takes it to use it temporarily and then to return it unconditionally within a reasonable time--and having a substantial ability to do so--lacks the intent to steal required for larceny.

VC 10851 is NOT a larceny statute. As it said:

10851. (a) Any person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle, or any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing, is guilty of a public offense and, upon conviction thereof, shall be punished by imprisonment in a county jail for not more than one year or pursuant to subdivision (h) of Section 1170 of the Penal Code or by a fine of not more than five thousand dollars ($5,000), or by both the fine and imprisonment.

Felony grand theft of a vehicle (PC 487d(1)) requires the intent to deprive according to the courts and common law.

Even with the law on its ear, most courts have found intent from the surrounding facts even if the suspect says he was just borrowing the item.

To bring it back to this thread, this might very well be an instance where no intent to permanently deprive the owner thereof may be relevant. If Tommy Trojan takes the Banana Slug of Santa Cruz from the tank before the big curling match as a prank to show school pride at being the best darn curlers in the land (as they certainly can't make such a claim about football), a court may find there was not an intent to steal the thing--depending on the surrounding facts.

 

[CdwJava]

As a note, I've yet to ever see 487(d) charged for auto theft. We tend to charge ONLY VC 10851.

And, if your interpretation of the law is holding, then why don't we see the borrowing defense raised all the time? I have yet to hear of any such defense, but it would seem a common claim if one could merely claim they were intending to bring it back and then force the state to read their mind or PROVE that the taking was NOT going to be permanent, but only for a temporary time frame.

What, then, is to keep my neighbor from coming into my home and borrowing my computer, my TV, my cell phone, and any of a host of other items - so long as he claims he was going to return then when he was done?

If that is the standard, then the defense bar would appear to be asleep at the switch! And the concept of personal or private property goes out the window.

Of course, if the owner can claim that the taking was for such a time that it deprived them of a "major portion" of the value or enjoyment, then it becomes theft again. How then do we define THOSE subjective terms? What would be a "major portion" of such subjective things as value or enjoyment? Either the law sets a low bar on that account, or defense attorneys have had their eyes closed for a very long time.

I would tend to agree that in this scenario the DA might decide not to prosecute ... but, as you say, it would depend on the surrounding facts.