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Posted: 3/20/2006 9:59:09 PM EDT
Had a discussion with a few officers from a neighboring agency about when you should ask for permission to search a persons vehicle. Wether after the citation has been issued and the stop terminated or at 1st contact or sometime before the citations have been issued.

I found from these officers that it used to be their agency policy to ask to search after the citations were issued so that the person would be free to go. The agency has now thrown this policy out and has gone to the policy of asking before the citations so a 2nd officer would conduct the search while the 1st wrote the cites and stayed with the person. The reason for this was that apparently they had 2 cases thrown out because the court said that after the cites were issued the stop was over and the officer had no right to conduct the search even though the person had granted permission. They stated that everyhting should have been handled during the time needed for the traffic stop.

So I've been asking around and found that most officers do it the 1st way and wanted to get yalls opinions. Thanks.
Link Posted: 3/20/2006 10:09:18 PM EDT
my training says that unless they were released the search could be argued as coerced. I ask for permission even if I have PC so it looks better in court.
Link Posted: 3/20/2006 10:09:57 PM EDT
Once the citation is issued and all their paperwork has been returned they're free to go, even if you don't say it. To make it truly a consent search, this is when you ask.
Link Posted: 3/21/2006 1:02:54 AM EDT
I remove the person from their vehicle and speak to them by my unit. I issue them their citation or warning and tell them the traffic stop is over and they are free to leave but I have a question for them...etc.

It is effective for me and it has never been challenged in court. People are a lot more likely to just put the car in drive and take off than to refuse a search and then have to walk back to their car for some reason.
Link Posted: 3/21/2006 5:50:29 AM EDT
Check your state court rulings!! Under federal law you MUST tell the person that they are free to leave. Under some state laws, you must do it while the person is still in your "custody".

Here in MO you must ask permission while the person is being detained.


Link Posted: 3/21/2006 6:05:55 AM EDT
This goes against everything we teach about consensual encounters/searches at our academy.

In order for the person to give proper consent they must feel that they are free to leave PRIOR to being asked for consent. They are technically in your custody until you tell them that they are free to go, so you can't legitimately ask them for consent.

Otherwise they can say they felt that they couldn't leave because the business that was the basis of the stop to begin with was not concluded (i.e. officer still had license/registration or they were waiting to sign ticket or warning, etc...) and even though they didn't really want to give permission, they felt they didn't have a choice.




Originally Posted By tac45:
Had a discussion with a few officers from a neighboring agency about when you should ask for permission to search a persons vehicle. Wether after the citation has been issued and the stop terminated or at 1st contact or sometime before the citations have been issued.

I found from these officers that it used to be their agency policy to ask to search after the citations were issued so that the person would be free to go. The agency has now thrown this policy out and has gone to the policy of asking before the citations so a 2nd officer would conduct the search while the 1st wrote the cites and stayed with the person. The reason for this was that apparently they had 2 cases thrown out because the court said that after the cites were issued the stop was over and the officer had no right to conduct the search even though the person had granted permission. They stated that everyhting should have been handled during the time needed for the traffic stop.

So I've been asking around and found that most officers do it the 1st way and wanted to get yalls opinions. Thanks.

Link Posted: 3/21/2006 6:31:11 AM EDT
Here in Arkansas there was a case thrown out because the officer had wrote a warning or citation I can't remember, bt after he was finished he asked to search the vehicle where then he found drugs. Supreme court of my state said once you've finished your traffic stop you can't ask to search the vehicle as the driver is free to go.
Link Posted: 3/21/2006 7:50:39 AM EDT

Originally Posted By ColtRifle:
Check your state court rulings!! Under federal law you MUST tell the person that they are free to leave. Under some state laws, you must do it while the person is still in your "custody".

Here in MO you must ask permission while the person is being detained.





+1 our prosecutor advised us to ask before issuing a citation. Goes against what I was taught back in academy but things have changed. I like this way a lot better.
Link Posted: 3/21/2006 10:36:21 AM EDT
It's pretty messed up. I wish the federal courts and the state courts would agree. I personally like the request while detained.

The people who it affects the most are troopers. They make stops on the interstate and have to decide right then and there if they are going to go to state or federal before they can even ask for permission to search. So if you stop a vehicle and ask while in custody and find 1000 pounds of cocaine then you would want to take it to federal court but if you asked while the driver was still in custody then you'll lose the federal case. If you do it the fed way and ask after releasing the driver and only find a small amount of drugs, it won't be enough for the feds to prosecute and the state courts won't touch it because you didn't ask while the person was in custody.

It's a mess. Hope they can get on the same page but it doesn't look promising.
Link Posted: 3/21/2006 7:50:54 PM EDT
Here in WA, if it's a consent search, we must do it after the traffic stop. This state is the worst for this sort of thing. We can't even do a pretextual stop. i.e. "He's ridin dirty so I'm stopping him for that tailight." That will get your pee pee spanked in court.
Link Posted: 3/22/2006 3:32:36 AM EDT
after the citations were issued so that the person would be free to go
Link Posted: 3/22/2006 4:32:24 AM EDT

Originally Posted By Mattz:
Here in Arkansas there was a case thrown out because the officer had wrote a warning or citation I can't remember, bt after he was finished he asked to search the vehicle where then he found drugs. Supreme court of my state said once you've finished your traffic stop you can't ask to search the vehicle as the driver is free to go.



Thats pretty stupid, if they are free to go you can ask them anything you want.

So, according to your state you have to ask before the driver is free to go?
Link Posted: 3/22/2006 11:12:07 AM EDT
Are you absolutely sure about this? It goes against the scotus rulings on that very type of situation...


Originally Posted By Mattz:
Here in Arkansas there was a case thrown out because the officer had wrote a warning or citation I can't remember, bt after he was finished he asked to search the vehicle where then he found drugs. Supreme court of my state said once you've finished your traffic stop you can't ask to search the vehicle as the driver is free to go.

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