Warning

 

Close

Confirm Action

Are you sure you wish to do this?

Confirm Cancel
Member Login
Posted: 4/24/2002 8:06:26 AM EDT
[Last Edit: 4/24/2002 8:09:41 AM EDT by AR15fan]
Keep seeing this one come up in the cop bashing threads. Q: When can an officer search? A: 1. No reasonable expectation of privacy. 1a Plain veiw 1b Abandoned property 1c No standing 1d In Jail 2. Incident to a lawfull arrest. 3. With consent. 4. With a warrant. 5. With probable cause. 6. Administrative searches. example: your car is being impounded for unpaid parking tickets. The police will do an inventory search of the vehicle. 7. Exigent circumstances 7a Hot pursuit 7b Immediate threat to life or property
Link Posted: 4/24/2002 10:52:37 AM EDT
Ok fine, what about this: About 18 months ago I got pulled over for "speeding". No problem I haven't been pulled over in about 8 years, I just figured it was my turn. I hand over license/insurance & registration. Officer leaves goes back to his squad car. Comes back w/ticket...no biggie. Then he asks what I have in a small box next to me on the floor of the passengers side. Its a small box, about the size of a VHS tape and its sealed with tape because I was ready to mail it off the next day. I tell him its a hard drive for my computer, he tell me to open it up. I tell him no way. He comes around the other side of vehicle grabs package & uses a small pen-knife to open the box. he finds a hard drive in there. I tell him he cannot do this & that he just violated 4th amendment rights. He tells me he can search "anything within arms' reach"...and that it doesn't matter that its sealed with tape. He tells me since the package felt heavy, it could have been a gun or drugs...ect. I tell him "whatever" & leave. End of incident. Since then I've felt a little pissed whenever I think of the incident. What's your opinion on the "search"? Was it illegal?
Link Posted: 4/24/2002 10:57:31 AM EDT
Violation of your rights? -yes Would the Cop get away with it if you took action? -yes
Link Posted: 4/24/2002 10:57:39 AM EDT
Probably. But so what? He had a gun and a badge, you didn't. Disclaimer: This is not intended to be perceived as cop bashing...but it's the truth, isn't it?
Link Posted: 4/24/2002 10:59:17 AM EDT
[Last Edit: 4/24/2002 11:04:53 AM EDT by Chimborazo]
Totally illegal search. At [i]best[/i], the officer may have had a "resonable and articulable suspicion". He certainly did [b]not[/b] have probable cause, which is the minimum necessary for a search. Edited to add that the officer [i]can[/i] do a weapons pat-down only with a "resonable and articulable suspicion" (see Terry v Ohio), but that does not include going into pockets, etc. It is simply a pat down, not a search. A good case illustrating the difference between a pat-down and a search is Minnesota v Dickerson.
Link Posted: 4/24/2002 10:59:59 AM EDT
Originally Posted By mayday: Ok fine, what about this: About 18 months ago I got pulled over for "speeding". No problem I haven't been pulled over in about 8 years, I just figured it was my turn. I hand over license/insurance & registration. Officer leaves goes back to his squad car. Comes back w/ticket...no biggie. Then he asks what I have in a small box next to me on the floor of the passengers side. Its a small box, about the size of a VHS tape and its sealed with tape because I was ready to mail it off the next day. I tell him its a hard drive for my computer, he tell me to open it up. I tell him no way. He comes around the other side of vehicle grabs package & uses a small pen-knife to open the box. he finds a hard drive in there. I tell him he cannot do this & that he just violated 4th amendment rights. He tells me he can search "anything within arms' reach"...and that it doesn't matter that its sealed with tape. He tells me since the package felt heavy, it could have been a gun or drugs...ect. I tell him "whatever" & leave. End of incident. Since then I've felt a little pissed whenever I think of the incident. What's your opinion on the "search"? Was it illegal?
View Quote
You should have reported it to his IAB division. I have a hard time believing that thats how it happened and you did nothing. Maybe you can still lodge a complaint, but I think you blew it. Arms reach my ass! Plain UNOBSTRUCTED VIEW is the standard, which means that he had to see something illegal, not merely suspicious like a box.
Link Posted: 4/24/2002 11:05:37 AM EDT
[Last Edit: 4/24/2002 11:07:26 AM EDT by Blaze-Of-Glory]
Originally Posted By mayday: He comes around the other side of vehicle grabs package & uses a small pen-knife to open the box. he finds a hard drive in there.
View Quote
No way was he acting within the law; state laws vary regarding your options for defense against outlaws.
Link Posted: 4/24/2002 11:06:04 AM EDT
Originally Posted By AR15fan: Keep seeing this one come up in the cop bashing threads. Q: When can an officer search?
View Quote
[b]All of the above[/b] They can do whatever the hell they feel like, and if you are lucky, you can get them in trouble after the fact.
Link Posted: 4/24/2002 11:07:18 AM EDT
Originally Posted By Minman72: not merely suspicious like a box.
View Quote
Not to bust yer chops, but why would a box be suspicious?
Link Posted: 4/24/2002 11:12:11 AM EDT
[Last Edit: 4/24/2002 11:58:46 AM EDT by Blaze-Of-Glory]
Originally Posted By fight4yourrights: They can do whatever the hell they feel like, and if you are lucky, you can get them in trouble after the fact.
View Quote
Any cop can do what he feels like, and if he is lucky, he won't be get injured by a citizen lawfully defending himself.
Link Posted: 4/24/2002 11:14:35 AM EDT
Originally Posted By fight4yourrights: They can do whatever the hell they feel like, and if you are lucky, you can get them in trouble after the fact.
View Quote
Which is why the place to argue about a search is in court or an IA hearing, not the street.
Link Posted: 4/24/2002 11:17:35 AM EDT
Originally Posted By fight4yourrights: Not to bust yer chops, but why would a box be suspicious?
View Quote
I find Altoid boxes suspicious, especially if the driver doesnt have minty fresh breath. Because in my experiance Altoid boxes contain Marijuana as often as Altoids. Same with 35mm film canisters, ziplock baggies, & cigar boxes.
Link Posted: 4/24/2002 4:01:50 PM EDT
Originally Posted By AR15fan:
Originally Posted By fight4yourrights: Not to bust yer chops, but why would a box be suspicious?
View Quote
I find Altoid boxes suspicious, especially if the driver doesnt have minty fresh breath. Because in my experiance Altoid boxes contain Marijuana as often as Altoids. Same with 35mm film canisters, ziplock baggies, & cigar boxes.
View Quote
Sure. However, your going to need consent or another justifiable reason to conduct the search. "Arms reach" won't cover it. The case law ruling that allows officers to search immediatly adjacent areas to an individual is for a search of weapons only. It is conducted for an officers safety. Therefore, the area to be searched must be consistent with an area that has the capacity to hold a weapon, and could be immediatly accessed by an individual. Your statement above indicates that you don't find Altoid boxes threatening, but mearly an indication of drug activity. Which is true, BTW. In the case of mayday, if what he stated are the true and full facts, then the officer was not within the legal bounds of authority to conduct the search. Did he remove mayday from the vehicle? Did he ask him if he was carrying any weapons in the vehicle? Did he ask any of hundreds of questions that would indicate that he was concerned about weapons? A box, taped closed, is not an immediate threat.
Link Posted: 4/24/2002 4:16:58 PM EDT
Originally Posted By AR15fan: Which is why the place to argue about a search is in court or an IA hearing, not the street.
View Quote
Pardon my french, but [b]BULLSHIT[/b] The 4th amendment says, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated" and NOT "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, is okay on the street, because it will be overturned in court." I'm not a cop basher, but I think cops that have attitudes like yours need to be removed from the force. I'm sure you'll find some way to claim that searching a vehicle without probable cause is (just like blinding me with your damn lights at night, so you have "control of the situation") vital to your safety, but do you know what? Your job isn't about YOUR safety (though I sincerely hope and want you to go home safe to your family at night) it's about the public's--and that guy being subjected to an illegal search is a part of that public.
Link Posted: 4/24/2002 4:30:03 PM EDT
[Last Edit: 4/24/2002 4:39:37 PM EDT by SeaDweller]
They don't need a reason. Just make one up. Let's not forget the cops who don't even have to ask for a fucking consent to search in the first place! Let me see here, we're placing you in another cop car for whatever the fuck reason. My own safety perhaps? Question it and be labeled a trouble maker and spend the night in jail. Next thing I see is some shithead Sgt. looking in the trunk of my rented Caddy Deville! Yes, my fucking papers were in order. That fucker said if I said another word I was going to jail. I complained about those aHole cops that violated the shit out of my supposed rights, but what the hell's gonna happen to them? NOTHING! Any experts here? How does someone look like he's gonna rob a gas station by simply getting gas at one station ( restroom was closed ) and driving across the street to another station to take a piss? The attendant was securely behind her 1 1/2" thick bullet resistant acrylic and all I asked her for was the rr key which she gave to me through the metal tray. All the fuckers involved that day in violating me and my friend can rot in hell. And you will.
Link Posted: 4/24/2002 4:50:48 PM EDT
Trying to defend your Constitutional rights during an interaction with a police officer is going to end in disaster. Just get names and badge numbers and as much detail as possible and go to Internal Affairs afterwards to make a complaint. Subject to the laws of your state, carry a small audio recorder to get a record of the transaction. I'm not saying that you should roll over for the jackboot, but do you really think you're going to win on the shoulder of the road? Don't end up arrested or dead or on some Fox TV video shows. I'm sure I'll get accused of being a quisling here, but take it for what it's worth.
Link Posted: 4/24/2002 4:58:27 PM EDT
If you are doing nothing illegal you have nothing to hide. Let's roll.
Link Posted: 4/24/2002 5:01:35 PM EDT
Yep, there's one thing that all police departments understand - CIVIL LAWSUITS.
Link Posted: 4/24/2002 5:06:11 PM EDT
Originally Posted By Imbroglio: If you are doing nothing illegal you have nothing to hide. Let's roll.
View Quote
Get it right!...Let's roll.™
Link Posted: 4/24/2002 5:23:25 PM EDT
Originally Posted By Jarhead_22: Trying to defend your Constitutional rights during an interaction with a police officer is going to end in disaster. Just get names and badge numbers and as much detail as possible and go to Internal Affairs afterwards to make a complaint. Subject to the laws of your state, carry a small audio recorder to get a record of the transaction. I'm not saying that you should roll over for the jackboot, but do you really think you're going to win on the shoulder of the road? Don't end up arrested or dead or on some Fox TV video shows. I'm sure I'll get accused of being a quisling here, but take it for what it's worth.
View Quote
Absolutely correct. However, most of highway stops are performed by the state police, who don't have jurisdiction anywhere else but on the highways and parkways in my area. If this guy is being that much of a problem, call in the local police, which would be an easy 911 call, then get the sherriff or county cops out. They are more sympathetic, especially if you put on a show with the 911 operator. However, if you're dialing 911 for protection against a cop, you will probably be scared shitless anyway! Just take it like a man, then screw him over big time when his cruiser pulls away and you make a stop at his station. That's how you get things done.
Link Posted: 4/24/2002 5:50:50 PM EDT
Minman72 - Just a minor correction... I see that you're from NY too. The New York State Police have jurisdiction in any and all areas within the borders of New York State. As part of their mission the NYSP choose not to patrol areas where there is adequate local presence (budget issues) however they have full jurisdiction over any infractions up to and including the state level, in any location inside NYS borders. Troopers are not just a "highway patrol" so to speak. In your area the NYSP may perform a highway patrol role, but they are not limited to that by law. There's really nothing more a local PD can do about an a-hole trooper than any other citizen can. In fact, the citizen can do more because they can say "lawsuit." They can both call/file a report with the supervisor or Troop commander, that's about it. County Sheriff's deputies and city police officers won't interfere unless they really, really have to (there's not much they can do anyway). Luckily, all the troopers I've ever dealt with, are friends with, or related to, tend to be held to a higher standard and consequently are far more professional (plus better educated, trained, etc) than most local officers. The consequences for a state trooper messing up are much more serious (read: out on their ass easier) than any of the municpal/county LE I know of. YMMV.
Link Posted: 4/24/2002 6:24:31 PM EDT
Originally Posted By Zak: I'm not a cop basher, but I think cops that have attitudes like yours need to be removed from the force. I'm sure you'll find some way to claim that searching a vehicle without probable
View Quote
Zak, What did I say that would lead you to belive I have ever, or would ever, conduct an illegal search. The scenario I am talking about is the cop doing a lawfull search and the crook wrongly believing, probably becuase of something he saw on TV, that the search is unlawfull. I have never met a cop who would knowingly do an unlawfull search. So the cop you are going to be arguing with in the street, believes he is doing the right/legal thing, at least as strongly as you believe he is not.
Link Posted: 4/24/2002 6:46:30 PM EDT
Originally Posted By AR15fan: Zak, What did I say that would lead you to belive I have ever, or would ever, conduct an illegal search.
View Quote
Perhaps I misspoke myself. I agree, you never said YOU would conduct an unlawful search, but you seem to CONDONE them, which is just as bad.
Originally Posted By fight4yourrights: They can do whatever the hell they feel like, and if you are lucky, you can get them in trouble after the fact.
View Quote
Which is why the place to argue about a search is in court or an IA hearing, not the street.
View Quote
In other words, "If your rights are being trampled, don't worry about it--the evidence can't be used against you anyway," and the tacit agreement with F4YR that "they can do whatever the hell they want." Forgive me if I don't give a rats ass about admisibility of evidence, but instead simply do not want my rights violated.
Link Posted: 4/24/2002 7:01:39 PM EDT
I have spent my life about 50/50 on both sides of the Atlantic. My experience with the U.K cops was more amusing than annoying. It may not have been realistic, but, you had absolute trust in the local "bobby". My experience with cops in Canada, U.S. and Mexico has been almost non-existant, apart from asking for directions! And I have NEVER had any complaints. As a consequence; frankly, when I joined AR15, I thought most of you guys were paranoid. But, the more stuff I read about peoples' experiences the more I am becoming a believer. Our NYPD Moderator seems like the type of cop we would hope for (big sucking sound!), but there seem also to be too large a number of police chiefs with Napoleonic psychosis that are transmitted to their underlings. I may sound like an old fart (I am), but, when you can't trust the local cop, it's the start of a breakdown in the basic fabric of society. If none of this is new to you, I apologize for stating (what to you is ) the obvious!- St-Cyr
Link Posted: 4/24/2002 8:06:08 PM EDT
Originally Posted By AR15fan: Zak, What did I say that would lead you to belive I have ever, or would ever, conduct an illegal search. The scenario I am talking about is the cop doing a lawfull search and the crook wrongly believing, probably becuase of something he saw on TV, that the search is unlawfull. I have never met a cop who would knowingly do an unlawfull search. So the cop you are going to be arguing with in the street, believes he is doing the right/legal thing, at least as strongly as you believe he is not.
View Quote
Then perhaps they need to spend more time being educated on the law. These men and women are just as accountable to the laws as we are and should be more so. They chose to place themselves in a position of authority and as such should BE an authority in their field. I know that in order to maintain my personal training certification I am required by the issuing organization to obtain so many continuing education credits. If I fail to stay abreast of the new discoveries and such pertaining to my field of "expertice" (I am no expert, but strive to that end), then I lose my credentials.
Link Posted: 4/25/2002 8:45:30 AM EDT
Originally Posted By mayday: Ok fine, what about this: About 18 months ago I got pulled over for "speeding". No problem I haven't been pulled over in about 8 years, I just figured it was my turn. I hand over license/insurance & registration. Officer leaves goes back to his squad car. Comes back w/ticket...no biggie. Then he asks what I have in a small box next to me on the floor of the passengers side. Its a small box, about the size of a VHS tape and its sealed with tape because I was ready to mail it off the next day. I tell him its a hard drive for my computer, he tell me to open it up. I tell him no way. He comes around the other side of vehicle grabs package & uses a small pen-knife to open the box. he finds a hard drive in there. I tell him he cannot do this & that he just violated 4th amendment rights. He tells me he can search "anything within arms' reach"...and that it doesn't matter that its sealed with tape. He tells me since the package felt heavy, it could have been a gun or drugs...ect. I tell him "whatever" & leave. End of incident. Since then I've felt a little pissed whenever I think of the incident. What's your opinion on the "search"? Was it illegal?
View Quote
FWIW, SCOTUS has already ruled that's a legal search. Jay [img]http://www.commspeed.net/jmurray/images/iroc-cop.gif[/img]
Link Posted: 4/25/2002 9:02:20 AM EDT
my 2 cents...some of the 'searches' described above would get you a) a quick trip to IA b) a qicker trip to the unemployment line at my department...AR15fan has it down pat and we don't stray from those guidelines...we carry and use 'consent to search forms with us and any search will be followed be an incident report whether you find something or not and you better be able to articulate your PC in the first 2 lines of your narrative.....
Link Posted: 4/25/2002 9:05:20 AM EDT
And SCOUTS uled that abortion (which is the termination of an innocent human life) is legal. What's your point. Their is NO Constitutional provision for the legalization of abortion, and there IS a Constitutional provision keep police from searching without a warrant. Now if you are caught COMMITING a CRIME, then you are subject to search. But speeding is not a crime, just a traffic infraction, unless you are charged with "reckless endangerment", which, IIRC, carries jail time. % MPH over carries NO jail time.
Link Posted: 4/25/2002 9:13:10 AM EDT
Originally Posted By AZCOP:
Originally Posted By mayday: Ok fine, what about this: About 18 months ago I got pulled over for "speeding". No problem I haven't been pulled over in about 8 years, I just figured it was my turn. I hand over license/insurance & registration. Officer leaves goes back to his squad car. Comes back w/ticket...no biggie. Then he asks what I have in a small box next to me on the floor of the passengers side. Its a small box, about the size of a VHS tape and its sealed with tape because I was ready to mail it off the next day. I tell him its a hard drive for my computer, he tell me to open it up. I tell him no way. He comes around the other side of vehicle grabs package & uses a small pen-knife to open the box. he finds a hard drive in there. I tell him he cannot do this & that he just violated 4th amendment rights. He tells me he can search "anything within arms' reach"...and that it doesn't matter that its sealed with tape. He tells me since the package felt heavy, it could have been a gun or drugs...ect. I tell him "whatever" & leave. End of incident. Since then I've felt a little pissed whenever I think of the incident. What's your opinion on the "search"? Was it illegal?
View Quote
FWIW, SCOTUS has already ruled that's a legal search. Jay [img]http://www.commspeed.net/jmurray/images/iroc-cop.gif[/img]
View Quote
Actually, a search of the "Lunge area" is permissible only for a search of weapons, not contraband. Unless you can reasonable articulate why you would 1. suspect the area contained any weapons and 2. that the individual was capabile of using any weapons concealed in this area, then the search would not be valid. A taped closed cardboard box does not, by itself, provide any reasonable belief that a weapon is contained therin. As I said earlier, the officers actions, as related by mayday, tend to validate the claim that he was not in search of weapons, as much as he was in search of contraband. A search for contraband is not permissible in the "lunge Area" doctrine. Only a search for weapons is valid within the lunge area, and usually it is a good idea to proceede such a search by removing the individual from the vehicle and any areas that the officer would search for weapons. If you are referring to the SCOTUS case in which the officer search the briefcase, then again I would point out the difference between a cardboard box, TAPED CLOSED, and an easily opened briefcase.
Link Posted: 4/25/2002 9:38:41 AM EDT
Lets take this one step further. The police conduct an illegal search and: a) Find nothing--The only thing you can do is file a complaint with the department, or go to the press. b)Find something--Your attorney can file a motion to suppress whatever was found. My criminal procedure professor said that for every 200 that are filed, 1 is granted. You can always appeal your conviction if you want to spend $15,000+.
Link Posted: 4/25/2002 9:41:32 AM EDT
Originally Posted By stcyr: Napoleonic psychosis
View Quote
Damn, you don't hear that everyday!
Link Posted: 4/25/2002 9:58:22 AM EDT
Now if you are caught COMMITING a CRIME, then you are subject to search. But speeding is not a crime, just a traffic infraction, unless you are charged with "reckless endangerment", which, IIRC, carries jail time. % MPH over carries NO jail time.
View Quote
Speeding isn't a crime? Then why can you get pulled over for it? Because it is a traffic infraction? Infraction of what? Infraction of state laws governing the travel on state, municipal, and local surface streets, roads, and highways. Focus on that word [b]law[/b] up there. What happens when you break the law? What is the act of breaking a law called? If you answered "infraction" again, think of another synonym - "crime". It is a crime to speed, however the penalty is a monetary, not penal. You pay a fine, take a few points off your driver's license, and you are through with it. When you are pulled over for speeding, you are essentially "arrested" for all intents and purposes. You submit your license in lieu of bail, and then you are released on your own recognizance. Reckless endangerment is another "traffic infraction" that carries penalties of money and jailtime. A rose by any other name is still a fvcking rose. the_reject
Link Posted: 4/25/2002 10:08:38 AM EDT
[Last Edit: 4/25/2002 10:10:28 AM EDT by OLY-M4gery]
Originally Posted By the_reject:
Now if you are caught COMMITING a CRIME, then you are subject to search. But speeding is not a crime, just a traffic infraction, unless you are charged with "reckless endangerment", which, IIRC, carries jail time. % MPH over carries NO jail time.
View Quote
Speeding isn't a crime?
View Quote
No a crime is something that is punishable confinement to jail or prison. In most places speeding is a forfieture, meaning you for can be required to pay a "deposit" if found guilty of the offense.
Then why can you get pulled over for it? Because it is a traffic infraction? Infraction of what?
View Quote
An infraction is a violation of a non-criminal law.
Infraction of state laws governing the travel on state, municipal, and local surface streets, roads, and highways.
View Quote
yup violation of law.
Focus on that word [b]law[/b] up there. What happens when you break the law? What is the act of breaking a law called? If you answered "infraction" again, think of another synonym - "crime".
View Quote
No speed=non-criminal violation.
It is a crime to speed, however the penalty is a monetary, not penal. You pay a fine, take a few points off your driver's license, and you are through with it. When you are pulled over for speeding, you are essentially "arrested" for all intents and purposes. You submit your license in lieu of bail, and then you are released on your own recognizance.
View Quote
A fine is a monetary penatly for a criminal violation. A "deposit" or "forfieture" is for a non-criminal violation. An arrest can only happen for a criminal violation.
Reckless endangerment is another "traffic infraction" that carries penalties of money and jailtime. A rose by any other name is still a fvcking rose.
View Quote
There are "traffic crimes" that are punishable by fine and jail time or both. Reckless driving resulting in injury is a crime. speeding is violation. 5th offense DUI is a crime, a felony. Following too Close is a violation. It varies from State to State, but most traffic violations are just that, violations, not crimes. No crime means, no search incident to arrest.
Link Posted: 4/25/2002 1:40:56 PM EDT
hmmm...
Link Posted: 4/25/2002 8:05:21 PM EDT
[Last Edit: 4/25/2002 8:07:01 PM EDT by thebrain]
There are two type of people in this world. Party members, Those that work for the government and believe what ever the government says to be legal is. And there are citizen who believe the Constitution is the supreme law of the land, and that it needs no interpretation. The way it is written is what it means. "The right of the people to be secure in their person, house, papers, and effects, against unreasonable search and seizures, shall not be violated, and no warrants shall be issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized" It says right here that a warrant must be issued in order to search person, house, papers, and effect. His box was an effect of his. The officer stopped him for speeding wrote him a ticket, and that should have be it. His car his box or his person was not particularly described in any warrant issued from oath or affirmation. They must have a warrant, how could one not understand this, when it is written so clearly?
Link Posted: 4/25/2002 8:12:06 PM EDT
Oh yeah I don't care if it was a gun in the box. Does the state train its police to read minds or see through solid objects? Are they now the thoughtpolice.
Link Posted: 4/25/2002 10:45:57 PM EDT
Speeding is a crime! u can be put in jail for it just like anything else ,around here at least. dont know about else where. the senerio he described there is a little odd. but here he could have put u in jail and then searched ur car before it was towed to the pound. your choice?
Link Posted: 4/25/2002 11:10:09 PM EDT
Hey Brain, FWIW, the framers of the constitution had no idea what the fuck a "car" is. The Sup. Crt. "interprets" what the framers had in mind in conjunction with future events and occurances. That said, a car is a means of transportation that can expidite the destruction of evidence to a crime - IE; it can spirit away the fruits of an illegal act before a warrant can be issued. Being a Federalist at heart I understand your argument. I too do not wish to see the expansion of police power. But only in light of modern times. The police have a job to do. They cannot do it effectivly without the "modern condition" being taken into account.
Top Top