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9/19/2017 7:27:10 PM
Posted: 10/24/2001 8:00:47 PM EDT
I was talking with a PA State Trooper about guns & carry issues. He informed me of a recent case when a brother L.E. Officer serched a suspect and found a concealed pistol. Prohibited offensive weapons charges insued but case was thrown out of court on 4th ammendment issues. Courts said that suspect was not commiting a crime at the time or posing a threat at the time of the search...therefore there was no probable cause for search. Case dismissed. I then continued to ask him that if I didnt have a carry permit (which I do) and was asked by an officer to be searched, I should refuse. If the officer goes ahead an searches you, he must prove there was probable cause that you were a threat or in commision of a crime...to HIS understanding of the case we were discussing. How can this be? So to my laymans understanding then as long as you're not commiting a crime or posing a threat, there will be no legal foot to stand on in case I do get charged?
Link Posted: 10/24/2001 8:06:22 PM EDT
Thats how it reads, You cannot even in this day and age convict the innocent. And you are innocent until proven guilty. Benjamin
Link Posted: 10/24/2001 8:26:20 PM EDT
Technically speaking police can legally search upon probable cause or incident to arrest; however, people forget laws are subject to interpretation by the courts. It is not clear cut black or white. A dishonest officer may fabricate in order to boaster his so-called probable cause.
Link Posted: 10/24/2001 8:43:39 PM EDT
you can also be "patted down" on less than probable cause
Link Posted: 10/24/2001 9:01:45 PM EDT
All I have to say about unwarranted search or Random search is this. OFFICER: "I WOULD LIKE TO SEARCH YOU?" REPLY." OKAY BUT MY LAWYER WILL HAVE TO BE PRESENT BEFORE YOU BEGIN." PICK UP CELL PHONE, DIAL LAWYER. PROBLEM 99 times out of 100 IS OVER Right then and There. No use getting a reprimand for a meritless search. Ben
Link Posted: 10/24/2001 9:29:38 PM EDT
Originally Posted By Avtomat: you can also be "patted down" on less than probable cause
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Here is the case you all want to read. It is still good law today and a cornerstone of criminal procedure. http://caselaw.lp.findlaw.com-END Of Script Attempt-
s/getcase.pl?court=us&vol=392&invol=1 The "Terry Frisk" or "Terry Stop" is a common term used to describe this, after the name of the petitioner in this case.
Link Posted: 10/24/2001 10:00:25 PM EDT
"Can an officer demand to search thru clothes?" Absolutely! Whether or not it stands up in court, an officer could demand the search. You could legally not give your consent, and he could search anyway. If you resisted, then there's trouble. But on the plus side, he "likely" (interpretation by the courts) would not be able to use anything from that search against you.
Link Posted: 10/24/2001 10:42:05 PM EDT
If an officer has a legal reason to stop someone, he only needs reasonable suspicion that the person is armed to conduct a 'pat-down' search for weapons. Probable cause is not necessary. If he sees a bulge that could be a gun or knife, or the person keeps reaching into an area that could conceal a weapon, that's usually enough. You can't just stop someone on the street for the hell of it and demand to pat them down just because you feel like it. You can always ask for consent to do a patdown even if you don't have reasonable suspicion- I usually do this before I start a DUII investigation, 'cause lots of drunks are cooperative until you tell them they're under arrest, and it's best to deal with the weapons issue before you get to that point. If this is done in a polite, professional manner most people aren't offended and will consent- they understand that I don't know them and don't know what they may be carrying, and prevents any misunderstandings when they do things like reach into their pockets. I guess one of the reasons I've had good luck with consent is I don't stop people who are minding their own business just to 'check them out'. If I have an articulable reason to believe they are up to no good, fine. If they just look different, that's not enough for me. Lots of folks look different, doesn't mean they're about to commit a crime. It's unfortunate, but way too many officers today, especially the younger ones, are unversed in search and seizure law, and don't understand when they can legally stop someone and when they can legally search someone. They also don't understand that you get a lot farther being polite and professional than being badge-heavy.
Link Posted: 10/24/2001 11:02:56 PM EDT
I went thru this in Maryland over a radar detector... Yes the officer had an electronic device used to detect the local oscilator of a radar detector and he did suspect i had a radar detector.... sorry no you cant search my car. he asks that i step out, when i do i lock my car. he gets very angry and i call a U.S. Marshal on the cell phone. End of search...pat
Link Posted: 10/25/2001 5:08:15 AM EDT
Yes! Police officers can do anything they see fit, objecting amounts to a pro-criminal-in-your-community-attitude might as well invite parolees from the nearest prison to live in your town. Also when officers are far from home (federal leos have to travel a lot sometimes) it is a good idea to invite them to stay in your home where they will be fed, this promotes good attitudes towards leos in that they don't have to force you to quarter and feed them.
Link Posted: 10/25/2001 5:09:55 AM EDT
and i call a U.S. Marshal on the cell phone
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Why? Rich
Link Posted: 10/25/2001 6:34:00 AM EDT
I've been told that if you are pulled over and the officer insists on searching your vehicle, that you should ask for an affidavit of probable cause and ask that their supervisor be present. Is an affidavit of probable cause something that has to be filled out on the spot or what? Also, is this good advice to consent to a search as long as their supervisor is present? Just curious
Link Posted: 10/25/2001 7:21:47 AM EDT
HA!, well...you can ASK for anything you want...:) Out on the side of the road, the LEO is in control. he can do pretty much anything he wants. Your recourse it to dispute his actions in Court, should he make an illegal search, and consequintly file criminal charges based on contriban he recovered in the search. Remember, probable cause isn't that hard to find. And, it's about to get lots easier... Rich
Link Posted: 10/25/2001 7:47:23 AM EDT
[b]Long but read it any way[/b]. I've been a Police Officer for 14 years and I am a supervisor. Never ever, under any circumstances consent to a search. If the officers asks permission then he most likely doesn't have reasonable suspicion or probable cause. Never resist a search but protest verbally, by saying repeatedly in front of witnesses that you do not give your consent to the search. Never consent to an interview period. The issue of what constitutes a voluntary non custodial statement is very complicated. If you are asked to come into a police station for an interview and you do so voluntarily, whatever you say can be used against you. The interviewing officer has no obligation to advise you of your rights if you are there of your own free will. If you are interviewed in a non custodial setting such as in a public place or your home and are there of your own free will, whatever you say can be used against you. You need to ask some questions like, Am I under arrest? Am I a suspect? Am I free to go? If you get a yes to the first 2 or a no to the last one then insist on consulting with an attorney and keep your mouth shut. Can an officer demand to search through clothes? It depends on the circumstances. If he feels something in your clothing during a "Terry" stop that he immediately recognizes as a weapon or other contraban then he doesn't have to ask to go further with the search, he has gone from reasonable suspicion to probable cause simply by feeling the object. If your are under arrest he can do a search incident to arrest and search the immediate area where you were arrested, say the room in your home where you were taken into custody and whatever is found can be used against you. He can also do a sweep of the rest of the home for persons who are out of sight but may threaten his safety and whatever is in plain view can be used against you. If you are a passenger in a vehicle he can take you out of the vehicle as well as the driver and search you for weapons under the guise of officer safety. Search and seizure rules go far and wide. They are often unknown to the general public and misunderstood by many police officers because they are subject to interpretation by everyone involved. Bottom line don't consent, don't resist and keep your mouth shut.
Link Posted: 10/25/2001 8:01:50 AM EDT
The can do whatever they want to do, their the "po-po". Shut up, say no, and let your $$$ lawyer do all of the talking in the court. That is where you are on equal footing with them. c-rock
Link Posted: 10/25/2001 8:56:55 AM EDT
Originaly quoted by, ronin2001" --------------------------------- and i call a U.S. Marshal on the cell phone -------------------------------- Why? Rich
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Ronin2001, You've beaten to the punch. Paterpk, would you mind elaborating what this has do with a U.S. Marshal?
Link Posted: 10/25/2001 12:38:01 PM EDT
[Last Edit: 10/25/2001 12:35:27 PM EDT by Sparky315]
If the officer has probable cause to search your vehicle, he's not required to give you anything. No 'affidavit of probable cause', nothing. No obligation to call anyone else to the scene (department regs may say different, though). An affidavit of probable cause is only required when applying for a search warrant, in most states. If your vehicle is mobile and the officer has PC to believe that you have contraband in it, he can search it without a warrant under the automobile exception to the search warrant requirement. At that point, your best bet is to stand back, let him search, and fight it out in court. If you try to physically interfere with him, you've just opened a whole new can of worms. You will probably be charged with a crime for doing so, and can be convicted even if the judge decides he didn't have enough PC for the search in the first place. If an officer asks for consent you are absolutely free not to give it. However, the officer may decide he has enough probable cause to search anyway. I usually ask for consent even if I already have PC, so that I have double coverage at the suppression hearing. The US marshal would be someone to keep him company in the back seat of the patrol car on the way to jail.
Link Posted: 10/25/2001 10:12:39 PM EDT
Quoted from Sparky315: If your vehicle is mobile and the officer has PC to believe that you have contraband in it, he can search it without a warrant under the automobile exception to the search warrant requirement
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Sparky315, While an officer can legally conduct pat down, seize contrabands in plain view, search the vicinity where the passengers have immediate control - e.g. glove box, side door compartments, and underneath passenger seats -, how could you justify searching closed containers, trunk area, sealed packages, wallets, papers, and etc., in a non exigent condition? Assuming the passengers and driver of the stopped vehicle are NOT wanted in the commission of a crime. And assuming the occupants of the vehicle pose NO immediate danger or threat to the searching officer, I believe a warrant is necessary if you go beyond the the normal parameter during a car stop. Please correct me if I am wrong.
Link Posted: 10/25/2001 10:29:50 PM EDT
[Last Edit: 10/25/2001 10:24:42 PM EDT by Sukebe]
It's been a long time since I went to cop school but if I remember correctly "PC" means [b]PROBABLE CAUSE! [/b] The automobile exception is clearly defined in case law and is rarely debated when there is "PC".
Link Posted: 10/25/2001 10:39:57 PM EDT
The automobile exception is clearly defined in case law and is rarely debated when there is "PC".
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I like to see current federal case laws regarding this so called "automobile exception" or else I'm not buying it. Anyone wishes to cite any cases? Also, merely declining a consent search does NOT in itself provide the searching officer with an excuse for probable cause.
Link Posted: 10/26/2001 3:34:17 AM EDT
I like to see current federal case laws regarding this so called "automobile exception" or else I'm not buying it. Anyone wishes to cite any cases? Also, merely declining a consent search does NOT in itself provide the searching officer with an excuse for probable cause.
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The case is Carrol V US. It was a Prohibition era case in which two Treasury Agents stopped a truck that they had good reason to believe was carrying illegal liquor. They conducted a search, found the liquor and made an arrest. The court held that there is a general exception for the warrant requirement for vehicles when Probable Cause exists, because a vehicle, by its very nature, is movable and that exigent circumstances usually exist. With PC on a stopped vehicle, you can search as far and wide as you reasonably need to to recover contraband. A good example is on a suspected drug smuggler. During the officer's investigation during the traffic stop, they build strong suspicion that illegal activity is occurring, beyond the initial traffic violation (different stories from the occupants, occupants don't know each other, coming from a source area, criminal history, et cetera). A K9 responds and indicates that narcotics are possibly present. The dog sniff gives the officers PC to strip the car as far as they need to in order to find the contraband. If you have ever seen where some of the smugglers hide the contraband (inside of radiators, gas tanks, tires), you would understand how difficult it can be to find this stuff. Officers would need to get a warrant to search a vehicle when PC was developed after they released control of the vehicle. Lets say an officer arrest Bubba for DWI. When Bubba is at the jail, he confesses that he murdered his girlfriend a few weeks ago and took her body to the woods with his car and buried it (alcohol often serves as an unintended "truth" serum). The officers would need a warrant to go to the impound yard and search the car for trace evidence (blood, fibers and what have you). Declining consent does not build probable cause, but can heighten suspicion and give the officer further grounds to investigate (like waiting for a dog to respond to sniff the car).
Link Posted: 10/26/2001 3:52:14 AM EDT
Okay...a little off topic. But when pulled over would it be best to stay in the car or to get out? I have gotten out a few times and that really pisses cops off!! Sgtar15 [img]http://www.stopstart.fsnet.co.uk/mica/viper.gif[/img]
Link Posted: 10/26/2001 4:10:27 AM EDT
There is an interesting search factor... cops can pat through your clothes with any old line of BS, and they can search your car, and anything in it, if they can make up PC before a hearing... but, if you have a container (purse, briefcase, dayrunner), and its closed (just closed), and it is outside the car, he needs a warrant to open it.
Link Posted: 10/26/2001 4:34:18 AM EDT
It varies by jurisdiction. We just were given new guidelines, We need a reason of an offense and that is for a consent search. Otherwise it is a search warrant. Most important is 'DO NOT GET OUT OF THE CAR' that can be used as an aggressive action, we have lost several good cops form being shot at MV stops. You turn off your motor, put your paperwork on the dash and put your hands on the wheel. At night turn on the interior light. That says cooperation, it makes the LEO feel safe, and gets you leeway for minor bull shit. Contary to alot of belief, the majority of LEOs are just doing their job, we are there to protect you.
Link Posted: 10/26/2001 4:34:39 AM EDT
Originally Posted By sgtar15: Okay...a little off topic. But when pulled over would it be best to stay in the car or to get out? I have gotten out a few times and that really pisses cops off!! Sgtar15 [img]http://www.stopstart.fsnet.co.uk/mica/viper.gif[/img]
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I personally like for the person to stay in the car. Alot of the times they jump out of the car because they want to hide something. Mostly, in my experience, it's usuallly alcohol.
Link Posted: 10/26/2001 4:43:55 AM EDT
Originally Posted By mayday: I then continued to ask him that if I didnt have a carry permit (which I do) and was asked by an officer to be searched, I should refuse. If the officer goes ahead an searches you, he must prove there was probable cause that you were a threat or in commision of a crime...to HIS understanding of the case we were discussing. How can this be? So to my laymans understanding then as long as you're not commiting a crime or posing a threat, there will be no legal foot to stand on in case I do get charged?
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Per Terry v. Ohio and its progeny, the officer under your hypo must pass through two hoops to meet 4th amendment scrutiny. First, in order to stop you (seizure) he must articulate OBJECTIVE facts that would lead to a REASONABLE suspicion (not inchoate) that there is criminal activity afoot. Second, in order to "pat you down for weapons", he must then be able to articulate OBJECTIVE facts that would lead to a REASONABLE suspicion that you are PRESENTLY armed AND dangerous. I could go on for pages (and do in suppression hearings) about what these terms mean according to federal caselaw, but I gotta go to court. Caveat: If you consent, voluntarily, to the search, all of this goes out the window.
Link Posted: 10/26/2001 8:17:19 AM EDT
[b]Antes:[/b] In Carrol vs US, agents had reasonable suspicion that a crime was being committed - right then and there. In my example, I was alluding to an instance of NON probabl cause. What I'm saying is certain officers feel they have the god given rights to rummage through all personal belongings in a routine car stop if you lookk out of place. With respect to dog sniffs, US supreme have established it is not a violation of the 4th amendment because one has no expectation of privacy outside of a vehicle or to the air space in or around the car. In addition, items found outside of the vehicle can be subject to search without warrant because it is considered public domain; therefore, the occupant has no standing for protection. When people toss evidence out of moving vehicles during police chase, they automatically dissolve any claims to standing if the evidence is ever introduced in court.
Declining consent does not build probable cause, but can heighten suspicion and give the officer further grounds to investigate (like waiting for a dog to respond to sniff the car).
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Ok...you have a point. But suppose an occupant says NO, officer. I’m not consenting to a voluntary search of my vehicle. The officer then brings in a K9 unit to sniff for the presence of drugs. And what if the sniff test proves negative, then what????? What's their next course of action??? Keep holding you while they attempt to get a Magistrate on the phone to issue a warrant based upon the fact someone refused to let them search?? By detaining an individual for an unreasonable amount of time without probable cause, they've already infringed upon your constitutional right of “UNREASONABLE SEIZURE”.
Link Posted: 10/26/2001 8:29:04 AM EDT
Would probable cause be an NRA sticker on the back of my truck window?
Link Posted: 10/26/2001 9:01:04 AM EDT
rlitt- If I have probable cause to search the car, I have probable cause to search the WHOLE car. The automobile exception exists based on the fact that the car is mobile, and could be gone by the time I went and got a warrant. Now, if I only have reasonable suspicion that there is a weapon in the car, I can do a "Terry" pat-down on the car just like I could on a person. In that case, I can only look in areas where a weapon could be reasonably hidden. That can include closed containers if they could reasonably be hiding a weapon that would be easily accessible to the occupants. In the instance you cite (dog sniff), if the officers lack PC but suspect someone is hauling dope, they can bring a dog to sniff it if in doing so they don't detain the person any longer than they normally would for the traffic stop- i.e. they can't hold you for an hour and a half on a red-light violation waiting for the dog to get there, if they don't have at least reasonable suspicion to detain you. If the dog doesn't hit, and they don't have any further probable cause, they have to let the driver go. Some officers hate to do that, but it's the law. Just a hunch isn't enough to hold someone. Declining consent CAN NOT be used as justification to hold someone longer or investigate further. You cannot hold someone's exercising their rights against them. It would naturally raise most officers' suspicions for someone to refuse consent, but if you don't have PC they have the right to refuse, and you can't hold them exercising that right against them. Some people simply find your asking to search offensive and won't consent. That's their right. Part of the problem is that search and seizure law is complicated, vague, and ever-changing. It's difficult for prosecuting attorneys to keep up on it, let alone the street cops. Unfortunately in some cases rlitt is right- some officers do feel they have a god-given right to search any vehicle or person they stop. This is where all the crappy case law that complicates the search and seizure issue comes from. A lot of officers are also very reluctant to let a vehicle or person go when they just know there's contraband, they just can't quite articulate enough PC. That's completely understandable, but the bottom line is we can't break the law to enforce the law. Don't have enough to hold someone, gotta let them go, even if you 'know' they're dirty.
Link Posted: 10/26/2001 9:17:45 AM EDT
Originally Posted By rlitt: Ok...you have a point. But suppose an occupant says NO, officer. I’m not consenting to a voluntary search of my vehicle. The officer then brings in a K9 unit to sniff for the presence of drugs.
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Stop right there. That is an illegal seizure so long as there STILL exists NO Terry suspicion (declining to consent is NOT an articulable suspicion). Anything that flows from the illegal seizure is suppressable.
And what if the sniff test proves negative, then what????? What's their next course of action??? Keep holding you while they attempt to get a Magistrate on the phone to issue a warrant based upon the fact someone refused to let them search?? By detaining an individual for an unreasonable amount of time without probable cause, they've already infringed upon your constitutional right of “UNREASONABLE SEIZURE”.
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Right, but the standard is not "probable cause", it's that of a Terry suspicion, less than PC. Further, your point is accurate starting at the beginning, above, not just when the K-9 comes up with nada.
Link Posted: 10/26/2001 9:57:40 AM EDT
I was once told by an officer that if I get out (and not in an intimidating way), to lock the doors. This way, the officer has no threat to him/her. If you are being pulled over for speeding or whatever, there should be no reason to search the car (yet you see this on every episode of Cops). If your doors are locked, where is the threat and PC? Of course, I was told that honesty is the best policy, and informing the officer that you have a weapon in the vehicle and would he/she like to get the registration from the glove box would make the officer feel a little better.
Link Posted: 10/26/2001 11:43:55 AM EDT
Here's a situation that happened to a good friend of mine. (I know because I had to bail him out.) He's a white male, college student, and drove a 2 year old Honda Accord that still looked new. One night he was sitting in a supermarket parking lot waiting to give a friend who worked at the store a ride home when a LEO decided to check him out for some reason. My friend had no criminal record and nothing - not even a parking ticket - outstanding. The officer took his ID and asked him to step out of the car and started patting him down. Of course he had no weapons on him, but the officer felt a little, round object in his pants and said "Ok, take the vial out of your pocket." My friend reached into his pocket and pulled out a little glass vial with about a 1/4 gram of cocaine left in it. The officer arrested him for felony drug possession. In court, the judge ruled that the stop was good and so was a pat down for weapons, but as soon as the cop said "take the vial out of your pocket" he was acknowledging that he didn't think it was a weapon, and absent any other PC, it was a bad search and the evidence was suppressed. The case was thrown out and my buddy walked.
Link Posted: 10/26/2001 11:58:48 AM EDT
Originally Posted By sgtar15: Okay...a little off topic. But when pulled over would it be best to stay in the car or to get out? I have gotten out a few times and that really pisses cops off!! Sgtar15 [img]http://www.stopstart.fsnet.co.uk/mica/viper.gif[/img]
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Stay in the car. If they want you to get out they will ask you to do so. Cops are suspicious by nature....... They will think you are getting out to attack them, flee, or keep them from seeing something. Not to mention they would hate to explain why you got out of your car and got hit by someone driving by.
Link Posted: 10/26/2001 12:06:05 PM EDT
Originally Posted By Steve-in-VA:
Originally Posted By rlitt: Ok...you have a point. But suppose an occupant says NO, officer. I’m not consenting to a voluntary search of my vehicle. The officer then brings in a K9 unit to sniff for the presence of drugs.
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[red]Stop right there. That is an illegal seizure so long as there STILL exists NO Terry suspicion (declining to consent is NOT an articulable suspicion). Anything that flows from the illegal seizure is suppressable.[/red]
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Unless the back up officer who arrives at the stop as a matter of usual "business" is a K-9 officer and the stop is not lengthened by waiting for a K-9.
And what if the sniff test proves negative, then what????? What's their next course of action??? Keep holding you while they attempt to get a Magistrate on the phone to issue a warrant based upon the fact someone refused to let them search?? By detaining an individual for an unreasonable amount of time without probable cause, they've already infringed upon your constitutional right of “UNREASONABLE SEIZURE”. [red]Right, but the standard is not "probable cause", it's that of a Terry suspicion, less than PC. Further, your point is accurate starting at the beginning, above, not just when the K-9 comes up with nada.[red]
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It might be helpful to ask, in a normal tone of voice, "Am I free to go?" or "Why am I being detained, and how long will I be detained?"
Link Posted: 10/26/2001 12:12:08 PM EDT
Here's something to consider. You are carrying without a permit and an officer searches your clothing without your consent and without probable cause, and you were not in the commission of commiting a crime. Well even though this may not stand in a court of law (the DA might send you a letter of dismissing the charges or the judge at court might order the case dismissed), your gun could be confiscated and you could spend the night in jail. That's a pretty bad inconvenience, even if in the long run all charges are dropped.
Link Posted: 10/26/2001 12:23:17 PM EDT
[Last Edit: 10/26/2001 12:34:08 PM EDT by OLY-M4gery]
Originally Posted By MC_Man: I was once told by an officer that if I get out (and not in an intimidating way), to lock the doors. This way, the officer has no threat to him/her. If you are being pulled over for speeding or whatever, there should be no reason to search the car (yet you see this on every episode of Cops). If your doors are locked, where is the threat and PC? Of course, I was told that honesty is the best policy, and informing the officer that you have a weapon in the vehicle and would he/she like to get the registration from the glove box would make the officer feel a little better.
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That is just wrong, how are you not a threat? (are there weapons on you, are you getting ready to flee?, is it that you don't want me to see the punched ignition?) I don't know about everyone else but if I have to write a citation I want the person that is getting it far enough away so that if they try someting I have time to react, even better they should be in a car seated, where they would have to leave the car and get to mey car before they can do something. And if someone who is stopped immediatley gets out of their car and locks the doors what do you think the cop will think is going on?? I would suspect most cops would then do a "walk around" of the car and see what was in "plain view" or "open view". If by some chance you were then arrested either for some fresh crime the LEO detects or for a warrant the car would be searched including all locked containers there in. The auto exception and search incident to arrrest still works in this case. If you are asking about threat or exigent circumsatnces to base the search on..... Yesa that would be true for a house. Cops must have PC to search and some type of exigent circumstance, someone is in signifigant danger, signifigant evidence will be destroyed if the police delay. Even in those instances the police may still need a warrant later in the process. PD gets called to a shot fired at an apt. They arrive there the see a guy in the apt, with blood around him. He is unresponsive. The police coud then force entry. The break in and fing the guy obviously dead. The exignet circumstance is now gone, they can't help the dead guy. The would seal of the apt. and wait for consent or a warrant to process the crime scene. With an auto the exignet circumstance that is always present is that it is by nature mobile. If there is PC to search a vehicle, and the vehicle is not impounded, then the vehicle can be searched without a warrant.
Link Posted: 10/26/2001 12:44:41 PM EDT
I never ask for registration unless that was the reason for the stop. It is funny sometimes when people DEMAND to find their registrations even though I'm asking them to stop looking for it. Of course most of them turn out to be drunk, wanted, or revoked. I had a traffic stop where the revoked DL driver absolutley refused to let us look in the car. The stop was on a US highway, and his car was still partially in the lane of travel. We asked if one of us could move it further of the road or if he wanted it towed. He said he wanted neither, again telling us to stay out of his car. He wasked if he could drive the car further of road - No you don't have a valid DL. Then he asked if he could push it off road - sure just don't start it up. He pushes it off road. Comes back to us and asks if it is far enough off road, it was. Revoked DL guy had been careful to lock his car every time he stepped out of it..... like we were gonna "rush" the car. We ask if he wants a ride somewhere, where in farm country 10 miles from the address on his DL. He says no.....we kinda think he'll wait a bit and jump back in the car.... Then he walks up to the car and starts trying all the doors....... he locked the keys in it. Of course it might be better to try to follow the law. If you do or say things that are obviously designed to keep the police from searching most officers will pick up on that some of the time. Some will pick up on it once in a while. A few will pick up on it all of the time. If 2 officers are at a traffic stop your chances of getting past both of them are slim. Of course they may realize what you are doing and do nothing about it if the don't feel they have a legal basis to do anything.
Link Posted: 10/26/2001 1:36:50 PM EDT
So basically, if a suspect hops out of vehicle and locks doors behind him, the vehicle cannot be searched. Providing that there is: 1)Nothing to further incriminate suspect in "plain view" inside of vehicle. 2)There are no warrants out for him. 3)There is nothing found on suspect outside of vehicle to warrant a further search. Am I reading this right? Anyone care to further elaborate?
Link Posted: 10/26/2001 1:39:17 PM EDT
Oh, and to add to the other three items. A K9 was brought in and there were no indications of contraband. Now, is there no way that the vehicle can be searched?
Link Posted: 10/26/2001 3:32:52 PM EDT
Originally Posted By mayday: So basically, if a suspect hops out of vehicle and locks doors behind him, the vehicle cannot be searched. Providing that there is: 1)Nothing to further incriminate suspect in "plain view" inside of vehicle. 2)There are no warrants out for him. 3)There is nothing found on suspect outside of vehicle to warrant a further search. Am I reading this right? Anyone care to further elaborate?
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Well he could also stay in the vehicle, the police need a reason to search. If they don't have a reasonable articulable suspcion that he is/was/will be committing a crime, or has/is committing a traffic violation they can't stop him. Even if he is stopped the need a reason to search. If there is a reason to search the car it won't matter if you do the jump out lock up that has been suggested. But I would suspect that if you do that jump out lock up action that an officer may be able to use that as part of the reason he felt he had reasonable grounds to search the vehicle.
Link Posted: 10/26/2001 3:38:52 PM EDT
Originally Posted By mayday: Oh, and to add to the other three items. A K9 was brought in and there were no indications of contraband. Now, is there no way that the vehicle can be searched?
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I think Steve from VA answered that, given the facts you give, no a search wouldn't happen. But remember we're answering general questions, just a little different fact situation changes the actions the officers can reasonably take.
Link Posted: 10/26/2001 3:59:53 PM EDT
In reference to the subject of K-9 searches, case law does exist which states that a warrant is not needed incidental to a search if the K-9 alerts and of course other probable cause existed to get you to the point of calling for a K-9. I am currently a shift Lieutenant however spent 5 years as a dog handler and 9 years as the K-9 Unit supervisor and have case law in my office which states so. I am not saying what Steve in Va. says is wrong as I believe he is an attorney and really enjoy his expertise in the legal forum but for more than the last decade here in my state this is the policy and it follows current case law. In other words let us say your stopped for a traffic violation and suspicious activity such as you are in a high drug trafficing area stopped in the middle of the road with a known dealer talking to you at your window and the unit pulls up behind you and you take off. He stops you, questions you, you refuse a search, he calls for a K-9, gets an alert, he can now search your car period. And those cases are upheld all the time here. However I believe the problem comes in where a simple traffic violation occurs. The officer wants to search your car, you say no, and a K-9 is called. Well at the point I don't think probable cause exists to call for the K-9 although as already said the air outside the vehicle is free and can be readily searched by the dog. I think that an officer would be hard pressed to defend his actions unless he could establish some other suspicious activity such as what I described earlier. In my state we are also able to detain any person up to 60 minutes while investigating any incident prior to arrest. Well I could go on and on on this one and I am not quite sure I added anything to the discussion as I was trying to follow everyone's line of thinking on this one. I welcome comments.
Link Posted: 10/26/2001 4:19:08 PM EDT
[Last Edit: 10/26/2001 4:20:58 PM EDT by OLY-M4gery]
I think what Steve was talking about, was extending a traffic stop to allow the dog time to get there. I think most places will say that is a constructive arrest w/o PC and violates the 4th Amendment. I also think what people were trying to get at was that old "if you don't let us search we'll call the dog, if you let us search and your clean we'll let you go". kinda thing where the consent search only comes after a little coercion. olyarms415, I think what your describing is an investigatory stop, and w/o the dog there may be enough to do a search of the vehicle, depending on all the facts. So it is easier to justify the detention prior to arrest as you have a Terry stop occuring, not a "routine" traffic stop. So yeah, I think both of you are right, but the situations you each describe is somewhat different. I don't think anyone was arguing that a dog can't be the basis of PC for a car search. But the how/why/when/ the dog is there can also de reviewed in a court to determine if the use of the dog was proper. Don't even get me started on proving the dog is qualified.........
Link Posted: 10/26/2001 4:31:30 PM EDT
Originally Posted By OLY-M4gery: I think what Steve was talking about, was extending a traffic stop to allow the dog time to get there. I think most places will say that is a constructive arrest w/o PC and violates the 4th Amendment. I also think what people were trying to get at was that old "if you don't let us search we'll call the dog, if you let us search and your clean we'll let you go". kinda thing where the consent search only comes after a little coercion. olyarms415, I think what your describing is an investigatory stop, and w/o the dog there may be enough to do a search of the vehicle, depending on all the facts. So it is easier to justify the detention prior to arrest as you have a Terry stop occuring, not a "routine" traffic stop. So yeah, I think both of you are right, but the situations you each describe is somewhat different. I don't think anyone was arguing that a dog can't be the basis of PC for a car search. But the how/why/when/ the dog is there can also de reviewed in a court to determine if the use of the dog was proper. Don't even get me started on proving the dog is qualified.........
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All good points and I do agree. Thanks for the information.
Link Posted: 10/26/2001 4:43:52 PM EDT
Case law varies from state to state. Around here, calling for a K9 after a refusal for a consent search can only be done 1)If there is additional reasonable suspicion (based on the officer's observations)to support an investigative detention for; or 2) The K9 can respond before the officer finishes the business of their original traffic stop. Absent either of those (and there are probably some others I am missing), additional detention after the traffic stop to wait for a dog would be unreasonable. The however on this is that if there is more reasonable suspicion to continue the detention, then you can detain the person for a while waiting for the dog. The most current one I can recall from case law is about an hour, although your suspicon had better be clear and easily articulable.
Link Posted: 10/26/2001 6:52:06 PM EDT
Quoted from Mayday: "A K9 was brought in and there were no indications of contraband. Now, is there no way that the vehicle can be searched"?
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Mayday, You have to understand dogs can be taught to sniff for anything. Nevertheless, most police K9 units are trained to detect drugs or explosives. If you were smuggling cigarettes, firearms, etc., etc., in your vehicle, a K9 unit would come up empty.
Link Posted: 10/26/2001 7:50:31 PM EDT
Originally Posted By OLY-M4gery: I think what Steve was talking about, was extending a traffic stop to allow the dog time to get there. I think most places will say that is a constructive arrest w/o PC and violates the 4th Amendment.
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Right. And the Sup. Ct. rulings (some are good as of late, like the roadblock cases) are the law of the land, per the 4th and 14th, no matter what the state does. Remember, Constitutional rights mandated to the states by virtue of the 14th are the floor, not the ceiling. A state can only grant you [i]more[/i] guarantees, not any less. It will, in the end, boil down to an examination of the encounter with LE. Was it permissive or constitutionally violative. If consent given or a reasonable suspicion of criminal acitivity is present (and can be articulated by the officer) the detention is OK, for the limited purpose of investigating the suspected criminal activity (if traffic ticket, once given, encounter OVER) or per the scope of the consent, if given. Search is a different story. Even a pat down for WEAPONS must begin with suspicion that the person is presently armed and dangerous, NOTHING LESS (except where drugs are found- Sup. Ct. says "where drugs, you find guns" and allow a pat down for officer safety). Otherwise, no search.
Link Posted: 10/27/2001 12:47:13 PM EDT
Originally Posted By OLY-M4gery:
Originally Posted By MC_Man: I was once told by an officer that if I get out (and not in an intimidating way), to lock the doors. This way, the officer has no threat to him/her. If you are being pulled over for speeding or whatever, there should be no reason to search the car (yet you see this on every episode of Cops). If your doors are locked, where is the threat and PC? Of course, I was told that honesty is the best policy, and informing the officer that you have a weapon in the vehicle and would he/she like to get the registration from the glove box would make the officer feel a little better.
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That is just wrong, how are you not a threat? (are there weapons on you, are you getting ready to flee?, is it that you don't want me to see the punched ignition?) I don't know about everyone else but if I have to write a citation I want the person that is getting it far enough away so that if they try someting I have time to react, even better they should be in a car seated, where they would have to leave the car and get to mey car before they can do something. And if someone who is stopped immediatley gets out of their car and locks the doors what do you think the cop will think is going on?? I would suspect most cops would then do a "walk around" of the car and see what was in "plain view" or "open view". If by some chance you were then arrested either for some fresh crime the LEO detects or for a warrant the car would be searched including all locked containers there in. The auto exception and search incident to arrrest still works in this case. If you are asking about threat or exigent circumsatnces to base the search on..... Yesa that would be true for a house. Cops must have PC to search and some type of exigent circumstance, someone is in signifigant danger, signifigant evidence will be destroyed if the police delay. Even in those instances the police may still need a warrant later in the process. PD gets called to a shot fired at an apt. They arrive there the see a guy in the apt, with blood around him. He is unresponsive. The police coud then force entry. The break in and fing the guy obviously dead. The exignet circumstance is now gone, they can't help the dead guy. The would seal of the apt. and wait for consent or a warrant to process the crime scene. With an auto the exignet circumstance that is always present is that it is by nature mobile. If there is PC to search a vehicle, and the vehicle is not impounded, then the vehicle can be searched without a warrant.
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Basically, I have my rights. I am not doing anything illegal. No need to check for a punched ignition when I give my ID and he runs the tag. There is no reason whatsoever for the officer to search my car, especially when there is no threat to his life. I do carry a gun in my car (legally), but would not have it on my person when pulled over.
Link Posted: 10/27/2001 1:09:16 PM EDT
All this discussion is moot if the officer went to the LAPD/Raphael Perez school of policing. Arrest and book the suspect. Go "find" evidence from officer's gang contacts. Book "evidence" 3 day later. Testify in court that evidence was seized at the time of arrest. Suspect is convicted and sent to prison for 5 years.
Link Posted: 10/27/2001 5:49:04 PM EDT
[Last Edit: 10/27/2001 5:45:37 PM EDT by OLY-M4gery]
Originally Posted By DnPRK: All this discussion is moot if the officer went to the LAPD/Raphael Perez school of policing. Arrest and book the suspect. Go "find" evidence from officer's gang contacts. Book "evidence" 3 day later. Testify in court that evidence was seized at the time of arrest. Suspect is convicted and sent to prison for 5 years.
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Gee, then I wonder why we are having it, and the lawyers in cops involved seem to agree on what does and does not violate people's rights........ MC_man, which was my point if there is no reason to search then no search should be done, whether yo do the ridiculous.......jump out of car and lock it or not. Searching doesn't matter on whether or not there is a threat to the officers life, thats what retrun fire is for. [:)]
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