Warning

 

Close

Confirm Action

Are you sure you wish to do this?

Confirm Cancel
Member Login
Site Notices
9/22/2017 12:11:25 AM
Posted: 3/11/2006 9:14:19 PM EDT
I'm trying to understand the context of this article from News 8 Austin:


APD: Consent searches take nose-dive in '05
3/11/2006 7:56 PM
By: News 8 Austin Staff

Austin Police requested fewer searches of people they pulled over in 2005 -- a lot fewer.

Friday the Department released its Annual Racial Profiling report.

It shows a major drop in overall "consent searches" from 2004 to 2005.

Police Chief Stan Knee says the department set a goal to cut the number of consent searches on drivers and pedestrians by twenty percent. Instead, the number dropped more than ninety percent.

The decrease in searches came despite an increase in the number of traffic stops last year. Officers pulled over more than 183,000 people, compared to about 178,000 in 2004.

Black citizens saw a greater reduction in consent searches than any other group -- a 25 percent decrease.

Searches dropped 16 percent for Hispanic drivers and nearly 15-percent for white drivers.

Senate Bill 1074 requires all law enforcement agencies to provide an annual report on racial profiling to its governing body.

APD's report goes to City Council, and then to City Manager Toby Futrell



Is this basically a report of the number of times that officers asked for consent to search after a traffic stop and were granted it?
Link Posted: 3/11/2006 10:42:41 PM EDT
A "consent search" is a search that is consented to when the officer has a suspicion but not enough to consider "probable cause". This varies from other searches in that the officer my look into areas that would normally be off limits during a "Terry Frisk", search for weapons.

An example of this would be if the officer wanted to look for drugs, working a high drug traffic area, but only had a traffic violation with no observable drugs or paraphernalia in plain view, including smell. The officer would have the ability to search areas that might contain weapons, wing span area or passenger compartment, in areas where a weapon could be hidden. A "Consent Search" would give an officer the ability to look into areas where any contraband could be hidden.

In any "consent search" situation the driver of the vehicle would give his permission, to the officer, to conduct this type of search.

In the State of Texas a vehicle is considered in public and can be searched, without consent, for weapons, when that vehicle is on a public roadway or any other area accessible to the public. This type of search has been deemed constitutional by the Supreme Court for officer safety. To go beyond the search for weapons requires the officer to have probable cause or a "consent to search" from the operator of the vehicle.

Search and seizure laws are among the most complex of everything that Law Enforcement deals with, because it deals directly with the 4th amendment to the Constitution.

I hope this clarifies things. If you have any additional questions you might try reading some of the Supreme Court cases dealing with Search and Seizure or post a thread on the Brothers of the Shield, thread.

I don't recommend the cases, unless you have some knowledge of the law, it can get pretty hard to understand. As a LEO I have read the cases and unferstand most of them, however, they are very complex issues. Volumes of material have been published on this very topic and it changes regularly.
Link Posted: 3/12/2006 4:16:16 AM EDT
Thanks. That's sort of what I figured. But what confuses me is why the APD would set an objective to have "20% fewer consent searches" in 2005. Are they asking officers to be 20% less suspcicious, or to ignore 1 in 5 occasions where they are suspicious?

It just seemed like a bizarre objective for a police chief to set...
Link Posted: 3/12/2006 6:11:49 AM EDT

Originally Posted By MPD165:

In the State of Texas a vehicle is considered in public and can be searched, without consent, for weapons, when that vehicle is on a public roadway or any other area accessible to the public. This type of search has been deemed constitutional by the Supreme Court for officer safety. To go beyond the search for weapons requires the officer to have probable cause or a "consent to search" from the operator of the vehicle.



Can you provide a reference for this? AFAIK it is not true, not even close. In Texas an officer can pull over as vehicle to check for license, etc. but he cannot just "search it for weapons". He can look in plain view and do Terry, upon good reason, but the idea the vehicle can be search for weapons is new to me.

BTW, my truck sits at the top of my driveway, and thus it is "accessible" to the public, as I do not have any "No Tresppassing" signs on my property or driveway. Doubt anyone would consider that in the public.
Link Posted: 3/12/2006 6:17:28 AM EDT

Originally Posted By RenegadeX:

Originally Posted By MPD165:

In the State of Texas a vehicle is considered in public and can be searched, without consent, for weapons, when that vehicle is on a public roadway or any other area accessible to the public. This type of search has been deemed constitutional by the Supreme Court for officer safety. To go beyond the search for weapons requires the officer to have probable cause or a "consent to search" from the operator of the vehicle.



Can you provide a reference for this? AFAIK it is not true, not even close. In Texas an officer can pull over as vehicle to check for license, etc. but he cannot just "search it for weapons". He can look in plain view and do Terry, upon good reason, but the idea the vehicle can be search for weapons is new to me.

BTW, my truck sits at the top of my driveway, and thus it is "accessible" to the public, as I do not have any "No Tresppassing" signs on my property or driveway. Doubt anyone would consider that in the public.



We have to be able to articulate that weapons might be in play. I think it's United States v Ross is the court case. Even then it's not the entire vehicle it's the immediate area in control of the driver.
Link Posted: 3/12/2006 7:29:35 AM EDT
[Last Edit: 3/12/2006 7:31:55 AM EDT by SC-Texas]
Learnin' sumptin' at dat dar acadeemy are yeee ?


(i've been waiting to use that emoticon!)



I didn't even remember the freackin' court case!
Link Posted: 3/12/2006 9:35:56 AM EDT

Originally Posted By pliftkl:
Thanks. That's sort of what I figured. But what confuses me is why the APD would set an objective to have "20% fewer consent searches" in 2005. Are they asking officers to be 20% less suspcicious, or to ignore 1 in 5 occasions where they are suspicious?

It just seemed like a bizarre objective for a police chief to set...



Wasn't the police chiefs idea. That's 100% city council. What happened is that we've stopped asking for consent searches when an arrest occurred (The former policy). It used to be that EVERY time you conducted a search you asked for consent. Now, it's just an inventory pursuant to arrest. Add to the the amount of paperwork under bias-based profiling rules and you're not going to see a lot of officers asking for consent where there are other paths to follow.

BTW: We're not allowed to call it "Racial profiling" anymore. Even if that's the name the entire rest of the country uses..
Link Posted: 3/12/2006 9:41:46 AM EDT

Originally Posted By jadams951:
We have to be able to articulate that weapons might be in play. I think it's United States v Ross is the court case. Even then it's not the entire vehicle it's the immediate area in control of the driver.



US v Ross was a search for dope with Probable Cause. It was not a Terry v Ohio frisk for weapons. Ross was basically a clarification of the Carroll v US (Carroll Doctrine) on how extensive the search could be.
Link Posted: 3/12/2006 9:47:03 AM EDT

Originally Posted By Johninaustin:

Wasn't the police chiefs idea. That's 100% city council. What happened is that we've stopped asking for consent searches when an arrest occurred (The former policy). Why would you ask for consent after an arrest has been made? Has the City of Austin gotten so politically correct that they no longer allow the totally legal search incident to a lawful arrest? It used to be that EVERY time you conducted a search you asked for consent. Now, it's just an inventory pursuant to arrest. Add to the the amount of paperwork under bias-based profiling rules and you're not going to see a lot of officers asking for consent where there are other paths to follow.

BTW: We're not allowed to call it "Racial profiling" anymore. Even if that's the name the entire rest of the country uses..

Link Posted: 3/12/2006 10:58:26 AM EDT

Originally Posted By jadams951:
Even then it's not the entire vehicle it's the immediate area in control of the driver.



Thanks, that is what I thought.
Link Posted: 3/12/2006 1:13:37 PM EDT
Your reading too much into what I wrote. These are general circumstances. The original poster asked a general question, not a specific question about a specific incident.
There is absolutly no way to discuss every circumstance here in this form. Don't quote me and tell me its not true when you don't have all of the facts or choose to read only what you want to.
If you need a reference go search the Supreme Court cases on searches. When you see how many times this subject has been challenged then maybe you will start to understand how complex this issue is.

As for the Terry reference, you are right, we have referred to them as Terry Frisks of vehicles where I work, but it wasn't that case that set the president.


Originally Posted By RenegadeX:

Originally Posted By MPD165:

In the State of Texas a vehicle is considered in public and can be searched, without consent, for weapons, when that vehicle is on a public roadway or any other area accessible to the public. This type of search has been deemed constitutional by the Supreme Court for officer safety. To go beyond the search for weapons requires the officer to have probable cause or a "consent to search" from the operator of the vehicle.



Can you provide a reference for this? AFAIK it is not true, not even close. In Texas an officer can pull over as vehicle to check for license, etc. but he cannot just "search it for weapons". He can look in plain view and do Terry, upon good reason, but the idea the vehicle can be search for weapons is new to me.

BTW, my truck sits at the top of my driveway, and thus it is "accessible" to the public, as I do not have any "No Tresppassing" signs on my property or driveway. Doubt anyone would consider that in the public.

Link Posted: 3/12/2006 8:14:28 PM EDT

Originally Posted By Johninaustin:

BTW: We're not allowed to call it "Racial profiling" anymore. Even if that's the name the entire rest of the country uses..



Political correctness, for the win!
Link Posted: 3/13/2006 3:33:15 AM EDT
Correct me if I'm wrong, but wasn't there something passed not too long ago requiring the officer to get the consent in writing? I would assume there would be some sort of form for this listing the person's rights before signing.

If so, that might explain the decline in searches. Either more people were made aware of their right to decline up front, or the officers just don't want to deal with the extra paperwork for something that may or may not produce anything.

Again, I may be way off base on this. Just throwing it out there in case there's something to it.
Link Posted: 3/13/2006 7:45:44 AM EDT
[Last Edit: 3/13/2006 7:46:22 AM EDT by JackieTreehorn]
Can I get a little insight on my encounter with the law?

It was a Saturday morning and I was on my way to have breakfast with my son. He spends the weekend at his mother’s house. After breakfast I planned on going to the range.

When I’m about two blocks away from collecting my son, SAPD pulls my over. When the officer approaches my vehicle, he asked me for my license. I comply and ask, “Why was I stopped?” he in turned told me I was speeding. I asked how fast I was going, and the officer demanded that I tell him how fast I was going. I told him I was doing 20mph in a 30mph zone.
“WRONG” comes from the officer, “its 15mph here.” Okay I’m not one to argue he’s the Law.

This is what he fallowed up with, “Do you have any narcotics in the car?” my reply “no.” he looks in my car seeing nothing but a box in the back seat. (The box in the back set contains software for the Army Battle Command Systems (ABCS). I am a Systems Administrator & an instructor at Fort Sam Houston.)

Then he asks, “Do you have any guns in the car?” My reply, “yes.” Officer “where?” my reply “behind the passenger seat in a holster” While opening my door hand on gun he tells me to get out of the vehicle. I do as he instructed, he puts me in cuffs and takes all my belonging out of my pockets. I ask, “Why am I being handcuffed?” His response was “because you have a gun.”

The officer puts me in his car returns to my car retrieves my gun from my car come back to his car starts giving me shit because I have a gun. Why do you have a gun? Where are you going?
Is it stolen? I don’t answer why I have a gun. I believe that’s a fucking stupid question. I tell him “No the gun is mine, and I was on my way to eat breakfast with my son then go to the range.”

He proceeds the threaten me that I better tell him if and where I stole MY gun. This guy fails to see that I have a Sig Sauer shirt and hat on. And what do you think the gun is a SIGPro 2340 in .40 cal. The officer looks threw my ID cards and notices that I work for the government. He some what eases up just a little. And stops asking if I stole the gun and ask what I do for a living.
I explained that I work with tactical system at Fort Sam Houston and have done so for the past five years.

He gets out of his car and speaks with his buddy that just drove up. Then he goes back to my car and stars searching it. Now it’s the 2nd round of questions by Officer2. I give him the same info I gave the first. I also tell him as I told the first I was going to eat breakfast w/my son the go to the range.

After about 30min in the back seat officer1 let me out. Give me a bunch of shit about having a gun. Don’t come around here with a gun this is a bad place. You will get jacked for you gun
And bunch of other bullshit. He also said he was not going to hand me back my gun but he was going to place it in my ammo can in the trunk. Which by the way the jerk scratched my gun by dropping it in the can.

Okay
Did he have a right to pull me out and detain me?
And did he have the right to search my car?
Link Posted: 3/13/2006 10:12:04 AM EDT

Originally Posted By Bulldawg:
Correct me if I'm wrong, but wasn't there something passed not too long ago requiring the officer to get the consent in writing? I would assume there would be some sort of form for this listing the person's rights before signing.

If so, that might explain the decline in searches. Either more people were made aware of their right to decline up front, or the officers just don't want to deal with the extra paperwork for something that may or may not produce anything.

Again, I may be way off base on this. Just throwing it out there in case there's something to it.



SB 1195 was introduced into the Texas Legislature in 2005, passed both houses and was sent to the governor. Governor Perry vetoed the bill. The bill would have required a written consent or record consent where Probable Cause did not exist or officer safety was not an issue. I think a majority of officers have video in their cars now so the law really wouldn't mean anything for those officers. We video our consents now just because we have the ability to do so. This law would have dealt with an officer asking for permission to search the vehicle when he nothing else to go on. As I mentioned earlier, if the officer has Probable Cause or if the officer can articulate a reason for fear of a weapon, no such signed consent would be needed.
Link Posted: 3/13/2006 10:31:05 AM EDT

Originally Posted By tvc184:

SB 1195 was introduced into the Texas Legislature in 2005, passed both houses and was sent to the governor. Governor Perry vetoed the bill. The bill would have required a written consent or record consent where Probable Cause did not exist or officer safety was not an issue. I think a majority of officers have video in their cars now so the law really wouldn't mean anything for those officers. We video our consents now just because we have the ability to do so. This law would have dealt with an officer asking for permission to search the vehicle when he nothing else to go on. As I mentioned earlier, if the officer has Probable Cause or if the officer can articulate a reason for fear of a weapon, no such signed consent would be needed.



Thanks for the info!
Link Posted: 3/13/2006 12:43:34 PM EDT
Austin.
Nuff said.
Link Posted: 3/13/2006 5:44:09 PM EDT
AFIK my understanding was that a vehicle is an extension of your residence and without probably cause, a consent to search is required.

I've been stopped a few times and asked for consent to search my vehicle. Most times (especially if I was on the clock) i'd say sure go ahead. I only refused once and it was because I din't like the attitude of the officer. Upon my refusal, the female officer became livid until her male partner had a talk with her. I let them know the reason I refused too.

I've never met an officer who was upset I was armed, usually quite the opposite. I would be rather upset at meeting an officer who believed I should not exercise my rights so I am quite happy I have not met one yet. Sorry to hear you had a run in with a few jerks.
Link Posted: 3/13/2006 10:24:41 PM EDT

Originally Posted By Recon_by_Fire:
AFIK my understanding was that a vehicle is an extension of your residence and without probably cause, a consent to search is required.



I’ve never heard of the vehicle being an extension of your home but I don’t guess it matters what you call it. In all cases, you need probable cause to force a search.

The main difference is that a house usually requires a warrant and the vehicle does not. With a house, you normally have time to get a warrant since the person in the home likely has no idea that you are coming. With a vehicle, you are already face to face with the driver. What are you going to tell him, “Wait right here while I get a warrant and come back”.

For that reason, it is generally held as reasonable that an officer can search a vehicle as long as probable cause exists since it would be nonsense (unreasonable) to drive somewhere and get a warrant and come back expecting the person to be sitting there waiting for you.
Link Posted: 3/14/2006 1:57:58 AM EDT
[Last Edit: 3/14/2006 2:05:16 AM EDT by Gator96]
It seems to me that officers can do what they want. And tend to stretch the truth about what they dont want. Even though I dont break any law regularly, other than the ocassional 1 to 5 mph over the speed limit, I would'nt consent to any officer searching my car at any time just on the fact that I dont have too. I know that they have no reason too, other than the typical bias against anyone around the age of 19 like myself. If they are going to waste my time, I might as well return the favor and waste thiers.
Link Posted: 3/14/2006 2:05:41 AM EDT

Originally Posted By SC-Texas:
Learnin' sumptin' at dat dar acadeemy are yeee ?

www.atomiclabrat.com/images/Emoticon/a1r05l-police%20shoot%20dog.gif
(i've been waiting to use that emoticon!)



I didn't even remember the freackin' court case!



I learned the proper doggie cappin procedures
Link Posted: 3/14/2006 8:34:25 AM EDT
[Last Edit: 3/14/2006 8:40:47 AM EDT by DevL]

Originally Posted By JackieTreehorn:
Can I get a little insight on my encounter with the law?

It was a Saturday morning and I was on my way to have breakfast with my son. He spends the weekend at his mother’s house. After breakfast I planned on going to the range.

When I’m about two blocks away from collecting my son, SAPD pulls my over. When the officer approaches my vehicle, he asked me for my license. I comply and ask, “Why was I stopped?” he in turned told me I was speeding. I asked how fast I was going, and the officer demanded that I tell him how fast I was going. I told him I was doing 20mph in a 30mph zone.
“WRONG” comes from the officer, “its 15mph here.” Okay I’m not one to argue he’s the Law.

This is what he fallowed up with, “Do you have any narcotics in the car?” my reply “no.” he looks in my car seeing nothing but a box in the back seat. (The box in the back set contains software for the Army Battle Command Systems (ABCS). I am a Systems Administrator & an instructor at Fort Sam Houston.)

Then he asks, “Do you have any guns in the car?” My reply, “yes.” Officer “where?” my reply “behind the passenger seat in a holster” While opening my door hand on gun he tells me to get out of the vehicle. I do as he instructed, he puts me in cuffs and takes all my belonging out of my pockets. I ask, “Why am I being handcuffed?” His response was “because you have a gun.”

The officer puts me in his car returns to my car retrieves my gun from my car come back to his car starts giving me shit because I have a gun. Why do you have a gun? Where are you going?
Is it stolen? I don’t answer why I have a gun. I believe that’s a fucking stupid question. I tell him “No the gun is mine, and I was on my way to eat breakfast with my son then go to the range.”

He proceeds the threaten me that I better tell him if and where I stole MY gun. This guy fails to see that I have a Sig Sauer shirt and hat on. And what do you think the gun is a SIGPro 2340 in .40 cal. The officer looks threw my ID cards and notices that I work for the government. He some what eases up just a little. And stops asking if I stole the gun and ask what I do for a living.
I explained that I work with tactical system at Fort Sam Houston and have done so for the past five years.

He gets out of his car and speaks with his buddy that just drove up. Then he goes back to my car and stars searching it. Now it’s the 2nd round of questions by Officer2. I give him the same info I gave the first. I also tell him as I told the first I was going to eat breakfast w/my son the go to the range.

After about 30min in the back seat officer1 let me out. Give me a bunch of shit about having a gun. Don’t come around here with a gun this is a bad place. You will get jacked for you gun
And bunch of other bullshit. He also said he was not going to hand me back my gun but he was going to place it in my ammo can in the trunk. Which by the way the jerk scratched my gun by dropping it in the can.

Okay
Did he have a right to pull me out and detain me?
And did he have the right to search my car?



Yes he had the right to detain you, no he had no right to search your trunk. Anything in the trunk would have been thrown out of a court case but had you had something illegal you would have gone to jail.
Link Posted: 3/14/2006 8:39:18 AM EDT
[Last Edit: 3/14/2006 8:42:39 AM EDT by DevL]

Originally Posted By tvc184:

Originally Posted By Recon_by_Fire:
AFIK my understanding was that a vehicle is an extension of your residence and without probably cause, a consent to search is required.



I’ve never heard of the vehicle being an extension of your home but I don’t guess it matters what you call it. In all cases, you need probable cause to force a search.

The main difference is that a house usually requires a warrant and the vehicle does not. With a house, you normally have time to get a warrant since the person in the home likely has no idea that you are coming. With a vehicle, you are already face to face with the driver. What are you going to tell him, “Wait right here while I get a warrant and come back”.

For that reason, it is generally held as reasonable that an officer can search a vehicle as long as probable cause exists since it would be nonsense (unreasonable) to drive somewhere and get a warrant and come back expecting the person to be sitting there waiting for you.



The only time a vehicle is an extension of your home is if it IS your home. This would be a like a mobile home. This was a question on my final in a Constitutional law class. The serching of the trunk was authorised on the previous stop only if something gave probable cause like A. ammo of caliber not use in the divers area was found and the gun it MIGHT be used in COULD be in the trunk because the pistol in the divers area did not use that caliber. or B. Person is under investigation and something is placed in the trunk and COULD be the drugs they are looking for because they saw that individual place something in the trunk and he was pulled over for a traffic violation. The speeding stop had no pobable cause for a search of the trunk. I made an A in that class BTW which almost noone does.
Link Posted: 3/15/2006 5:43:06 AM EDT
One thing that tends to be forgotten is that these cases that allow searches in certain situations are EXCEPTIONS to the RIGHT against searches and seizures. It may not seem like much, but it kind of follows the concept of innocent until proven guilty. In the sense of a search, the officer must prove, in a way, that he had some exception to the rule to search. Problem is that the only time these things are challenged are when someone was accused of a crime. This puts an underlying problem on the minds of judges of whether to uphold the LAW or allow some vague exception to keep the criminal in jail.

So, to my knowledge as an attorney in Texas, there is not RIGHT of an officer to search for weapons in the car. The exception is that the officer must "reasonably articulate" the reason for searching, as well as "the totality of the circumstances" that gave rise to his reason for searching. So your average stop at night has no reason involved to search the vehicle. Some examples of a potentially allowed search could be a mag in the seat next to you, gunbox in plain sight, empty holster, bullets, etc. If an officer feels threatened by the persons presence in the vehicle, he can have the person exit the vehicle and perform a Terry search and remain outside the vehicle for the duration of the encounter.

I would gladly challenge a search such as this (unless there was consent of course), and for free even (well, maybe not free). Funny thing is that MOST people gladly give up their rights to allow a search even when they know they have something illegal. As stated above, I would never consent to a search.
Link Posted: 3/15/2006 7:38:42 AM EDT
I have to say with all my run-ins with Johnny Law. 80% have some shit authority and think there above the Law. So therefore they do what they want. I have always been straight forward and honest with an officer. I have no reason not to do so. I obey the Law and nothing puts an officer above the Law.


To the other 20% Thank You for your service and a Job Done Right!
Link Posted: 3/19/2006 6:41:08 PM EDT
Actually, counselor, you have it almost right--but not all the way.

As an officer, I can look into your vehicle the same as any other citizen--through the windoes or open doors for contraband that might be in plain sight. Also, I can remove you from your vehicle and look forweapons that might be in your immediate area--say under the seat, in the floorboard, etc.

I can frisk you for weapons--the "Terry" part--but beyond that I need probable cause to get in the vehicle.
Or, I can ask for consent.
If I find that contraband in plain view or while looking for weapons in the immediate control of the driver--then I have PC to search the rest of the vehicle.

If I see a joint in the ashtray--there's your PC and I'm in the car. If I smell the obvious odor of MJ--I'm in the car.
If you are arrested for an offense--I have to perform an inventory search of the vehicle prior to towing--and anything I find can and will be used against you.

It's not as simple as most folks think.

pato
Link Posted: 3/19/2006 7:11:04 PM EDT

Originally Posted By pato:
Actually, counselor, you have it almost right--but not all the way.

As an officer, I can look into your vehicle the same as any other citizen--through the windoes or open doors for contraband that might be in plain sight. Also, I can remove you from your vehicle and look forweapons that might be in your immediate area--say under the seat, in the floorboard, etc.

I can frisk you for weapons--the "Terry" part--but beyond that I need probable cause to get in the vehicle.
Or, I can ask for consent.
If I find that contraband in plain view or while looking for weapons in the immediate control of the driver--then I have PC to search the rest of the vehicle.

If I see a joint in the ashtray--there's your PC and I'm in the car. If I smell the obvious odor of MJ--I'm in the car.
If you are arrested for an offense--I have to perform an inventory search of the vehicle prior to towing--and anything I find can and will be used against you.

It's not as simple as most folks think.

pato



I think we are essentially saying the same thing officer, however, you still need that "link" to get to the Terry Search. What people here seem to worry about, and is absolutely incorrect, is that an officer, at any given traffic stop, can search for weapons on the person or in the car.
I
'm not saying it is PC, but it is Reasonable Suspicion. It's a lesser standard, but a "test" nonetheless. If you go for the search, you MUST reasonably articulate the reason you felt "threatened". Searching for a weapon, for the sake of finding an illegal weapon in the same sense as dope, will require PC. The gray area is tough, but the absolute no no is if you take average joe out of his car during an average traffic stop, and Terry search him.
Link Posted: 3/19/2006 8:21:58 PM EDT

Originally Posted By 69firebirdconv:
I think we are essentially saying the same thing officer, however, you still need that "link" to get to the Terry Search. What people here seem to worry about, and is absolutely incorrect, is that an officer, at any given traffic stop, can search for weapons on the person or in the car.
I
'm not saying it is PC, but it is Reasonable Suspicion. It's a lesser standard, but a "test" nonetheless. If you go for the search, you MUST reasonably articulate the reason you felt "threatened". Searching for a weapon, for the sake of finding an illegal weapon in the same sense as dope, will require PC. The gray area is tough, but the absolute no no is if you take average joe out of his car during an average traffic stop, and Terry search him.



Why would you need PC to search for an "illegal" weapon when you only need Reasonable Suspicion to frisk for any weapon? I can see if you are talking about a search of an area outside the wingspan of the driver/passenger like maybe in the trunk. Other than that, if you have RS to find a weapon, PC is not needed.
Link Posted: 3/19/2006 8:39:03 PM EDT

Originally Posted By tvc184:

Originally Posted By 69firebirdconv:
I think we are essentially saying the same thing officer, however, you still need that "link" to get to the Terry Search. What people here seem to worry about, and is absolutely incorrect, is that an officer, at any given traffic stop, can search for weapons on the person or in the car.
I
'm not saying it is PC, but it is Reasonable Suspicion. It's a lesser standard, but a "test" nonetheless. If you go for the search, you MUST reasonably articulate the reason you felt "threatened". Searching for a weapon, for the sake of finding an illegal weapon in the same sense as dope, will require PC. The gray area is tough, but the absolute no no is if you take average joe out of his car during an average traffic stop, and Terry search him.



Why would you need PC to search for an "illegal" weapon when you only need Reasonable Suspicion to frisk for any weapon? I can see if you are talking about a search of an area outside the wingspan of the driver/passenger like maybe in the trunk. Other than that, if you have RS to find a weapon, PC is not needed.



I was referring to an instance where there is no reasonable suspicion of harm to the officer, and he decides he believes the guy is hiding "something", meaning paranoid. Here's a scenerio, perfectly nice guy gets pulled over, polite, etc., but a quick background check shows the guy has a previous arrest for having an illegal weapon. so the officer thinks that he might have a gun, but nothing other than the record indicates any potential harm to the officer. The reasonable suspicion cannot apply b/c the officer cannot "articulate" any reason for feeling in danger. So in essence it is the same as the record showing that he had been previously arrested for narcotics. Granted, I have read many of "reasons" given for a search after the fact.
Link Posted: 3/19/2006 9:28:44 PM EDT

Originally Posted By 69firebirdconv:
Searching for a weapon, for the sake of finding an illegal weapon in the same sense as dope, will require PC.

I was referring to an instance where there is no reasonable suspicion of harm to the officer, and he decides he believes the guy is hiding "something", meaning paranoid. Here's a scenerio, perfectly nice guy gets pulled over, polite, etc., but a quick background check shows the guy has a previous arrest for having an illegal weapon. so the officer thinks that he might have a gun, but nothing other than the record indicates any potential harm to the officer. The reasonable suspicion cannot apply b/c the officer cannot "articulate" any reason for feeling in danger. So in essence it is the same as the record showing that he had been previously arrested for narcotics. Granted, I have read many of "reasons" given for a search after the fact.



I agree that you legally cannot search every car you stop for weapons simply because you stopped it. What you wrote however still does not address your previous post that I quoted. I do not think that an officer ever needs Probable Cause to search for a weapon inside of the passenger compartment of a vehicle since current case law only requires Reasonable Suspicion to legally justify the search/frisk for weapons (not an actual search per se but "an exception to a PC search").

You listed a scenario where you describe a situation that shows neither PC or RS so it is a moot point. If you don't have PC or RS, we both agree that there can be no search for weapons. Try giving a scenario where the officer has RS that he is in danger but cannot search/frisk the vehicle for weapons because he does not have PC.

An officer might have PC to make the search but it is not required since you can always frisk for weapons with RS.
Link Posted: 3/19/2006 10:22:39 PM EDT
You're right, in that if you have RS for danger and a weapon, you can do the search. What I was originally trying to state was that you needed PC for a search where the search was for anything that could be illegal including a weapon.

I never meant to say that if an officer had RS that he needed PC to search for weapons. And I'm sure we agree that the area searched is limited. I was trying to point out that without the "threat" factor there, you need PC. May seem like a minor point, but I find it fairly significant, especially when the guy in jail is sitting there b/c he didn't have a CHL but had his 357 in the glovebox.
Link Posted: 3/20/2006 8:11:01 AM EDT

Originally Posted By Johninaustin:

Originally Posted By pliftkl:
Thanks. That's sort of what I figured. But what confuses me is why the APD would set an objective to have "20% fewer consent searches" in 2005. Are they asking officers to be 20% less suspcicious, or to ignore 1 in 5 occasions where they are suspicious?

It just seemed like a bizarre objective for a police chief to set...


Wasn't the police chiefs idea. That's 100% city council. What happened is that we've stopped asking for consent searches when an arrest occurred (The former policy). It used to be that EVERY time you conducted a search you asked for consent. Now, it's just an inventory pursuant to arrest. Add to the the amount of paperwork under bias-based profiling rules and you're not going to see a lot of officers asking for consent where there are other paths to follow.

BTW: We're not allowed to call it "Racial profiling" anymore. Even if that's the name the entire rest of the country uses..


If you're not even allowed to call it "racial profiling," then isn't the issuance of an "Annual Racial Profiling report" a moot point?


Friday the Department released its Annual Racial Profiling report


Link Posted: 3/20/2006 9:08:52 AM EDT

Originally Posted By 69firebirdconv:
Funny thing is that MOST people gladly give up their rights to allow a search even when they know they have something illegal. As stated above, I would never consent to a search.



So doesn't that help LEOs out? If they know they have something illegal but they consent anyway, well doesn't that help the cops out by spending less time trying to come up with PC?
Link Posted: 3/20/2006 11:58:49 AM EDT

Originally Posted By beavo451:

Originally Posted By 69firebirdconv:
Funny thing is that MOST people gladly give up their rights to allow a search even when they know they have something illegal. As stated above, I would never consent to a search.


So doesn't that help LEOs out? If they know they have something illegal but they consent anyway, well doesn't that help the cops out by spending less time trying to come up with PC?


What if you're carrying* in your vehicle according to the traveling presumption in Houston? Do you really want to be Rosenthal's test case? Not illegal, but you still may be arrested for it.



* You're a non-CHL for this example, which removes the reporting/announcing requirement.
Link Posted: 3/20/2006 4:37:23 PM EDT
Link Posted: 3/20/2006 8:06:06 PM EDT
"Do you have any weapons in the car?"

Nope.


OR

Yes, I have a CHL and I am armed.

None of his/her business what else I have in my car.
Top Top