There was a pre-trial hearing on September 25, 2023. Nothing of importance in the court notes other than:
Frauditor arrested and charged with possession of scanner
- Thread starter Peter_SD911
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N6JPA
A Ham Radio Operator With too much frequency.
Well the law says police radio. A competent attorney would argue that a radio scanner is not a police radio only designed for communicating with the police. YMMV. IMHO. Unfortunately this guy is pro se and probably doesn't understand the law. Oh well.
Hit_Factor
Member
Interesting, since there isn't a radio capable of just sending, I think the argument that "or receiving" can not stand alone. The sending would have to be an attribute of the radio to be considered a police radio.
A couple questions of an Officer on the stand would very quickly show that a police radio is capable of sending or receiving. If it can't send, it's not a police radio.
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belvdr
No longer interested in living
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The "or" in the law means it doesn't necessarily have to do both, so it can include any number of receivers.
- Can it "send" on said frequencies? If yes, it's a "police radio" per the law.
- Can it "receive" on said frequencies? If yes, it's a "police radio" per the law.
Hit_Factor
Member
Just dealing with beyond reasonable doubt here. If that was my only defense I would request a bench trial, because it's a point of law. Both send and receive are elements of a police radio. I have prosecuted hundreds of cases, that's the way I see it.
Hit_Factor
Member
Thinking this through a little further. From a defense point of view I would also attack "on frequencies assigned by the Federal Communications Commission for police emergency purposes" vigourosly. After that "designed for use only in a dwelling".
While I don't know the answers now, I suspect the following would help with beyond a reasonable doubt:
Does tha application by the PD contain frequencies? If i does how could the FCC assign them? Could it be the frequencies were licesned instead of assigned?
Since a peice of paper can't be cross examined, someone would have to testify to what the FCC does, as it's an element of the law.
Where did "does not include a radio designed for use only in a dwelling" come from, it's not numbered like the rest of the clauses?
This is one part (there are several) of that job I miss. I really enjoyed analyzing the law and applying it.
While I don't know the answers now, I suspect the following would help with beyond a reasonable doubt:
Does tha application by the PD contain frequencies? If i does how could the FCC assign them? Could it be the frequencies were licesned instead of assigned?
Since a peice of paper can't be cross examined, someone would have to testify to what the FCC does, as it's an element of the law.
Where did "does not include a radio designed for use only in a dwelling" come from, it's not numbered like the rest of the clauses?
This is one part (there are several) of that job I miss. I really enjoyed analyzing the law and applying it.
Also, does a "dwelling" include ones yard.
Hit_Factor
Member
A dwelling usually has a threshold, and it's different from a property line.
Dwelling generally means the structure where you lie down to sleep.
I'm thinking the yard is not included.
The dwelling statement also caught my attention, I'm just not sure how to twist it up. Maybe argue that no radios are designed to be used exclusively in a dwelling. But I'm not sure I see a bennifit here. As soon as you can find a witness at a newspaper to testify the SDS200 (or whatever model) is used to monitor RF in the newsroom, it's not a radio designed for a dwelling. The law is poorly written, and maybe that combined with the odd use of 'or' supports the argument the transmit AND receive is what makes a police radio.
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You could read the Indiana Code yourself and answer that question.
As for the meaning of "dwelling", curtilage comes up in Indiana law in other contexts, so it might be applied here. As shown in the video that was posted earlier in this thread, the defendant was detained by police on a public highway outside of his vehicle, so I don't think whether the defendant was in his dwelling is an issue.
Hit_Factor
Member
OK, so it's the second sentence of (2). Might be simply a web formatting issue regarding the line break. None of the other subsections in this section have two sentences. Maybe it should have been (3). Writing good law is hard.You could read the Indiana Code yourself and answer that question.
paulears
Member
Why don’t you guys apply a little common sense, and step back a pace, so you can look at what an average citizen, legislator, legal counsel or court official will think, not being a radio hobbies or professional?
In court, they will decide what terms mean, and then move forward. The transmit/receive distinction made here is all about what some believe is the key feature, as in can it transmit. U.K. law always had radio tightly controlled’s through to the end of the Cold War, and legally, you did not have to press transmit. Having something in your possession that could transmit was sufficient. I was actually even a witness to one failed arrest. A ham had bought legitimately the same make and model the police used. He was rushed in a shop by an off duty policeman and arrested. I was taken as a potential witness. Unfortunately, I was also a ham. I asked a simple question. Have you tried his radio. They went and got it and tried to call the control room. Nothing. Then they tried to listen to the control room. Their opinion that it was a ‘police’ radio evaporated.
I am certain that even if it only received, they would have prosecuted, as our law back then was that possession of something for which a licence was not available was the crime.
The US stance seems to be that reception is lawful in most states, but not, I understand, in all of them. The term ‘police radio’ might be argued as being any radio that receives the police, not maybe a radio that transmits? Why not test the notion by the judge Judy test. Is that a police radio? Turn it on. Whose voices are those? The police? Tada! It’s a police radio. Legally arguable of course, but the premise is sound.
turn a radio on and boats come out, it’s a marine radio. If it’s airplanes, it’s an aircraft radio. That does seem pretty sensible as an outsider.
In court, they will decide what terms mean, and then move forward. The transmit/receive distinction made here is all about what some believe is the key feature, as in can it transmit. U.K. law always had radio tightly controlled’s through to the end of the Cold War, and legally, you did not have to press transmit. Having something in your possession that could transmit was sufficient. I was actually even a witness to one failed arrest. A ham had bought legitimately the same make and model the police used. He was rushed in a shop by an off duty policeman and arrested. I was taken as a potential witness. Unfortunately, I was also a ham. I asked a simple question. Have you tried his radio. They went and got it and tried to call the control room. Nothing. Then they tried to listen to the control room. Their opinion that it was a ‘police’ radio evaporated.
I am certain that even if it only received, they would have prosecuted, as our law back then was that possession of something for which a licence was not available was the crime.
The US stance seems to be that reception is lawful in most states, but not, I understand, in all of them. The term ‘police radio’ might be argued as being any radio that receives the police, not maybe a radio that transmits? Why not test the notion by the judge Judy test. Is that a police radio? Turn it on. Whose voices are those? The police? Tada! It’s a police radio. Legally arguable of course, but the premise is sound.
turn a radio on and boats come out, it’s a marine radio. If it’s airplanes, it’s an aircraft radio. That does seem pretty sensible as an outsider.
Herein lies the issue.
Laws which treat a device capable of receiving law enforcement transmissions as a tool of a criminal need to be written well.
Laws are rarely written well.
I have a flathead screwdriver. Its a tool. If i break a car ignition with it, its a auto theft tool. But laws shouldnt ban all screwdrivers.
I have a brick. Its building material. I throw it thru a window, its the device i used to commit vandalism, but we wont ban bricks.
I have a baseball bat. Its a sporting good. I beat the crap out of someone with it, its a weapon of battery. Imagine banning all baseball bats.
The problem with writing laws is that they need to cover all the bases, but also be easy to understand and apply without wiggle room, AND without accidentally crossing the line into restricting lawful uses.
Is there a single state that has a law that says "Possessing a device which is capable of receiving law enforcement transmissions while in the commission of a crime is illegal (or an enhancement)"
And i bet you even if there was such a simple law, it would STILL both be challenged AND potentially over applied.
Well, well, well. There's been some movement on this case.
A final pre-trial hearing/conference was held 9/25/2023. The jury trial was confirmed for 10/19.
The prosecution filed a motion in limine on 9/28 which may have been to have the court rule certain evidence as in admissible. The prosecution also filed witness and exhibit lists. The court ordered the defense file a response to in limine motion by 10/11.
The prosecution filed a motion on 10/5 to continue the jury trial due to court congestion.
The defense filed a request for a 404(b) disclosure on 10/6. This was something to do with the court's rules of evidence which states that "evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person". This request was granted on 10/11 and the prosecution was given until 10/16 to comply. I can only assume that the prosecution was trying to use previous arrests and video taped actions as proof that the defendant was a bad person.
The prosecution filed notice on 10/6 that they had complied with the defense's discovery motions.
Apparently, the defense filed an in limine motion and the prosecution was given until 10/17 to respond with all objections heard before the trial on 10/19. The prosecution responded on 10/16.
On 10/12, a writ of attainment (warrant) for the body of the defendant was issued. The court granted the prosecution's motion revoking pre-trial release. Bond was set at $10,000 with no bail amount.
On 10/17, it appears that the prosecution and the defense reached some resolution. The jury trial scheduled for 10/19 was vacated. The prosecution moved to recall the warrant which the court granted. A diversion agreement was filed. A hearing is now scheduled for 4/15/2024 to hear a possible dismissal under deferral. IOW, the defendant is going to do something, I don't know what, maybe a fine, and the case will be dismissed next spring.
A final pre-trial hearing/conference was held 9/25/2023. The jury trial was confirmed for 10/19.
The prosecution filed a motion in limine on 9/28 which may have been to have the court rule certain evidence as in admissible. The prosecution also filed witness and exhibit lists. The court ordered the defense file a response to in limine motion by 10/11.
The prosecution filed a motion on 10/5 to continue the jury trial due to court congestion.
The defense filed a request for a 404(b) disclosure on 10/6. This was something to do with the court's rules of evidence which states that "evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person". This request was granted on 10/11 and the prosecution was given until 10/16 to comply. I can only assume that the prosecution was trying to use previous arrests and video taped actions as proof that the defendant was a bad person.
The prosecution filed notice on 10/6 that they had complied with the defense's discovery motions.
Apparently, the defense filed an in limine motion and the prosecution was given until 10/17 to respond with all objections heard before the trial on 10/19. The prosecution responded on 10/16.
On 10/12, a writ of attainment (warrant) for the body of the defendant was issued. The court granted the prosecution's motion revoking pre-trial release. Bond was set at $10,000 with no bail amount.
On 10/17, it appears that the prosecution and the defense reached some resolution. The jury trial scheduled for 10/19 was vacated. The prosecution moved to recall the warrant which the court granted. A diversion agreement was filed. A hearing is now scheduled for 4/15/2024 to hear a possible dismissal under deferral. IOW, the defendant is going to do something, I don't know what, maybe a fine, and the case will be dismissed next spring.
For all of these people who got their law licenses from the Mogen David Law School, Vineyard and 24-Hour Laundry, you should know that it's impossible to second-guess what a court might do. The possibilities are endless. It's my 2¢ worth from a 32-year LEO veteran who's probably been in court more than a thousand times and has handled everything from drunk & disorderly to murder.
As much as I hoped that someone would drag the Indiana scanner law all the way through the court system, I really didn't think the case would actually go to trial. I think the defense dragged their feet and stonewalled a little to see if the prosecutor would drop the charges. The prosecutor probably figured that he had bigger fish to fry. In the end, I think our frauditor will get a fine and a slap on the wrist. But, I wouldn't want to be the frauditor. I imagine that the police agencies around Terre Haute know about him and keep an eye out for him.
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