Learn your rights regarding police searches; Interesting Reading.


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Vernal45
May 20, 2005, 08:29 PM
http://www.cnn.com/2005/LAW/05/18/colb.circumcision/index.html
Learn your rights regarding police searches
Can police search home if you say 'no' then your spouse says 'yes'?

By Sherry Colb
FindLaw Columnist
Special to CNN.com

(FindLaw) -- Last month, the Supreme Court decided to review Georgia v. Randolph. The case asks the following question: If a husband refuses to give police consent to search his house, may the police get consent from his wife?

This question is important because a large number of warrantless searches are conducted on the basis of consent. The more flexible the concept of "consent," therefore, the more searches the police can perform, without a warrant, without probable cause, and without any real basis for believing that criminal activity is afoot.
Why police want consent

Ordinarily, police must have a good reason to invade your privacy. If an officer wants to search your home, the Fourth Amendment requires that she first obtain a warrant -- after demonstrating to a neutral magistrate that she has probable cause to believe she will find evidence of crime there.

In the absence of a warrant, or an emergency explaining the failure to obtain a warrant, the police officer violates your constitutional right against unreasonable searches and seizures when she crosses the threshold of your home.

And even with a warrant, the officer must limit the scope of her search to the areas where the evidence she seeks might reasonably be located. In other words, she can't search your desk drawers for a stolen big-screen television.

But all of that changes when you consent. Once you give a police officer permission to search your home, you relieve her of the obligation to obtain a warrant and probable cause. You relieve her, as well, of the obligation to limit the scope of her search.

A simple "Go ahead" in response to "Do you mind if I look around?" converts what would have been an unlawful invasion of privacy into entirely legal activity. It forfeits the Fourth Amendment objections you might otherwise have had.

So it is clear why police seek consent for searches -- it saves them a lot of trouble, and it opens doors that the Constitution otherwise keeps firmly shut. But why does anyone consent?
Why people consent

As I elaborated in greater detail in an earlier column, the main reason people consent to searches is that they do not know any better.

To many, a police officer's request for consent may sound like a rhetorical question that does not really allow a negative response. The occupant of the residence might hear an implicit "We could do this the easy way (with consent) or the hard way (without consent) -- it's up to you" in the police question. Who would prefer "the hard way" in the face of those alternatives?

But don't police tell the suspect that he has the right not to be searched? After all, when a suspect is arrested, he is told -- before any interrogation may take place -- that he has the right to remain silent.

The Supreme Court has said no. According to the Court, the fact that a person might not know he has the right to refuse a search is merely one factor in the determination of whether his consent is voluntary.

The Court has reasoned that the police do not need to give warnings -- to eliminate any doubt about the suspect's knowledge of her rights -- because warnings might detract from the informality of an otherwise friendly interaction between civilians and the police.

The Supreme Court has explained that "the community has a real interest in encouraging consent, for the resulting search may yield necessary evidence for the solution and prosecution of crime...." Furthermore, the Court has concluded, it would be "thoroughly impractical" to require an effective warning about the right to refuse.
Third-party OK

It is with this positive perspective on consent searches that the Supreme Court addressed the question of third-party consent. Third-party consent occurs when the person who gives police permission is not the target of the search or the defendant in the later criminal prosecution.

You may have a roommate, for example, with whom you share a kitchen, bathroom, and living room in a two-bedroom apartment. The police suspect that the roommate possesses marijuana and has hidden it in the home you share.

They either lack probable cause, and thus grounds for a search warrant, or do not want to bother to try convincing a judge. And they also believe that you are more likely to consent to a search of the common areas of the dwelling than your roommate is. So they ask for your consent to a search of the living room and bathroom.

You might say yes, because you either don't mind or don't think you have a choice. The police then search the medicine cabinet in your bathroom to find evidence connected to your roommate. Perhaps they find something. Perhaps they don't. Either way, legally, they have not violated the Fourth Amendment.

But what if it turns out that you didn't have actual authority to consent to the search of the medicine cabinet? Perhaps you and your roommate agreed that you would use the shelves on the wall and your roommate would use the medicine cabinet.

According to the Court, a lack of actual authority doesn't matter either. As long as the police reasonably believed that you had authority to consent and that your general consent to the search of the bathroom included the medicine cabinet, the police have done nothing illegal.
Disputes: Government side

It is in this context that the issue of disputes between people with common authority over the premises arises. The police receive consent to search from someone besides the suspect.

But this time, the police have already requested consent from the suspect and been told no. Should the police be able to proceed with a search on the basis of the third-party consent they subsequently obtain from a roommate or spouse?

It may seem obvious that the answer is yes -- and that the case is therefore a slam-dunk for the government. If the well-established legal rule is that police need consent from only one party with common authority, then it follows logically that the existence of a non-consenting other person with common authority is irrelevant.

After all, there is little difference between the target's saying "no" to a request for consent, on the one hand, and the target's not being asked or given an opportunity to say "yes," on the other -- either way, the target has not given anyone permission to search his home. If his consent is needed for a search, then the search is illegal. If it is not, then the search is fine.

Consider an analogy. You own a car. Someone who lives down the street from you decides to "borrow" that car. You frequently leave your key in the ignition. Your neighbor gets into your car and drives around on errands without ever asking you for permission.

That person has illegally taken possession of your car. It is no defense for the person to say "Well, you never said that I couldn't borrow it." The default rule is that he cannot borrow it -- it takes an affirmative act by you to change that default.

Therefore, the "borrower's" failure to obtain your permission to use the car is equivalent to his having expressly asked to borrow it and received a clear "no" in response.

In the same way, the government could argue, the failure to give consent for a search is legally indistinguishable from a response of "no" to a request for consent. If the former does not preclude third-party consent, then the latter -- where police ask the target and he says "no" before they go to the roommate or spouse -- should not either.
Disputes: The other side

Consider what happens when you share common authority over premises with another person. You can invite friends over to the house. You can authorize guests to use the bathroom or sit in the living room, and you can do these things without calling your roommate or spouse. But that is not because "yes" necessarily trumps "no" when it comes to understandings and expectations about shared spaces.

Rather, it is because the default of "no permission" changes when one of the people with common authority over the premises grants someone permission to enter -- whether a friend or a neighbor or the police. Once one of you invites a person in, the default becomes permission.

Consider again the car analogy. Your neighbor still wants to borrow your car, and he still has not asked for your permission. This time, however, he has asked your spouse, who co-owns the vehicle, and your spouse has said OK.

In this scenario, if your neighbor claimed "Your spouse said I could borrow the family car," and you believed that claim, then you would no longer have any reason to complain about your neighbor's actions. Your spouse, in other words, has the implicit authority to speak for both of you when someone requests permission to use your joint property.

Unless you say otherwise, your spouse's permission thus counts as permission from both of you. That is why your failure to raise an objection to the neighbor's borrowing the car -- recall the "you never said no" defense -- is meaningful when the other joint owner has said "yes," in a way that it is not when neither of you has granted permission.

If instead, however, your neighbor has asked you first and you have said no, his subsequently going to your spouse and getting permission would present a very different set of circumstances. Your spouse now no longer speaks for both of you, even implicitly, because you have already made your wishes known to the neighbor.

By failing to accept your refusal, the neighbor -- at the very least - has behaved improperly by seeking a different "ruling" from your spouse. You could now understandably complain about the neighbor's actions and say "I already told you no. Going to my spouse to ask for permission was out of line."

Now return to the consent search case. When the police officer asks you whether it is OK if she looks in the bathroom, your affirmative response speaks for both you and your roommate. If, however, your roommate has already refused consent, then you can no longer speak for him.

The question, at that point, really does become whether "yes" can trump "no" -- rather than whether people with common authority can consent to searches and entries on each other's behalf (prior law makes clear that they can).
Court should rule against state

Let us take a step back and consider how important it is for police to be able to perform consent searches. The Supreme Court seems to think it is essential, saying that "a search authorized by a valid consent may be the only means of obtaining important and reliable evidence." But is the Court right to value consent searches so highly?

Consent searches that could not otherwise take place -- that is, searches that are not supported by probable cause, a warrant, or some other measure of reasonableness -- are, by that very index, unlikely to yield results. They are based on hunches and other unsubstantiated police guesses and they are frequently a needless invasion of privacy that wastes police time.

These fruitless "consent" searches typically happen below our radar, because police have no incentive to tell us about them, and they only rarely cause the sort of injury that would motivate a lawsuit. In the unusual case in which police guess correctly, we hear about the consent search, and that selective revelation conveys the misleading impression that something appropriate and reliable must have motivated the search in the first place.

The invasion of privacy can be substantial, because people rarely feel that they have the right or the option of saying no when police ask for permission to search, no matter how extensively. And over time, police may come to feel entitled to get consent, which only emboldens them to ask for permission to search on flimsier grounds and with a greater air of legal rectitude.

But that is all set by existing Supreme Court precedents. The question now before the Court is a relatively narrow one: whether police should be able to "cheat" when it comes to consent -- ask dad, and when he says no, just go to mom or grandma, etc., until they hear the answer they want.

As rare as it is for people to exercise their right to privacy in the face of police "requests" for forfeiture, those assertions -- when they do occur -- deserve respect. If the Court holds otherwise, it will further whittle away the right against unreasonable searches and seizures -- the right to make police accumulate probable cause and seek a warrant from a neutral magistrate before showing up at your doorstep or your car window, hoping to look around.

Though the Court seems so far to have been mesmerized by the "need" to search without any basis for believing the search will yield results, it should wake up from its trance and close the door to your private spaces.

Sherry Colb, a FindLaw columnist, is a professor and Frederick B. Lacey Scholar at Rutgers Law School in Newark, New Jersey.

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Hawkmoon
May 20, 2005, 08:55 PM
This is one of the few times I find myself in agreement with a FindLaw columnist. She's exactly correct -- this is just like if Mom tells me I can't have an ice cream cone before dinner I'll go ask Dad, If he says no I'll ask Grandma, and so on ...

Seems logical enough to me that if the police are investigating the husband (for example), and the husband says "No, you may not search my house," any subsequent permission by the wife should apply only to the wife's possessions, not to those the husband told them they could not look for/at.

Carnitas
May 20, 2005, 11:09 PM
Interesting that she doesnt discuss children, or house guests.

Can my cousing who's staying over for the night on a road trip provide consent? How about by 6 year old,.... what if he's 12,... 16, 18, 20????

geekWithA.45
May 20, 2005, 11:49 PM
"No Consent To Search Is Granted - The Owner".

rwc
May 21, 2005, 01:17 AM
State laws and state supreme court decisions may provide you greater protections than those provided under federal constitutional decisions. Know the laws of your jurisdiction if this worries you...

Preacherman
May 21, 2005, 01:29 AM
Sounds to me like one's reply to a police officer should be "No, I do not give you permission to search, and I further prohibit you from seeking such permission from anyone else, as I am the only person with the authority to give you that permission."

That should sort out any potential conflicts.

Crosshair
May 21, 2005, 01:40 AM
OOOOOOOOOOO, I hope the Court makes it harder to pull stuff like this article mentions. :)

Morning officer what can I do for you.
Can we come in and look around.
You got a warrant.
I can have one in an hour.
See ya later. *Slam* :D

2nd Amendment
May 21, 2005, 11:07 AM
"No Consent To Search Is Granted - The Owner".

What an interesting thought. Would it hold any legal standing whatsoever?

NHBB
May 21, 2005, 12:10 PM
I had an issue with this in my college days, over a minor marijuana indiscretion. I absolutely refused despite the coaxing.. " ill have to seal off the room and wait for a warrant, it could take hours". I told him, do what you have to do, but there is no way I am giving you consent to search. this even after he barged in and looked around anyways. then the other questions... "well if you have nothing to hide, why cant we look? it will only take a couple minutes..."

no thanks, and yeah I was guilty of smoking a little something in there, but in the end I was able to fend them off. college kids.. what can you say, I was pretty ignorant of the law then but I knew the basics. I think most offer consent in an effort to look innocent, and then it backfires when it was their legal right to say in so many words... "up yours".

btw this does not reflect in any way my opinions of LEO who I hold in high regard, but the bullying tactics used by some are the source of disdain for the system in general for many people.

rick_reno
May 21, 2005, 12:28 PM
I expect this court - which hasn't been generous with the 4th Amendment - to rule in favor of the state.

DSRUPTV
May 21, 2005, 01:39 PM
It seems to me reasonable that if the first answer was a no then it should stand and the officer should go try to get a warrant. I, by the way, am very supportive of Police Officers, but even when I had "arrest search and seizure" in B.L.E.T. I thought there could be problems to one person being able to give consent to search common areas like the roomate example. I also think that many people need to take steps to be more educated about their rights.

centac
May 21, 2005, 01:50 PM
Does anyone know of any research, and I dont mean an online poll, but actual, rigorous, scientifically sound research, that has measured the general public's knowledge of their rights?

In articles like this you see a lot of inferences that people may or may not know what thhier rights are, but I've never seen any actual measures taken.

Vernal45
May 21, 2005, 02:01 PM
The majority of people do not know there rights, in regards to consent searches. That is why police easily run rough shod over citizens to gain consent.

When you are read your rights, you are told you do not have to say anything. I think, like the Texas Bill that LEO's dont want, the police should inform you that you have the RIGHT not to consent to a search. Will that happen? Nope, police wont give up their power.

centac
May 21, 2005, 02:18 PM
Do you have any evidence to back that up, or is that one of the things that "everybody knows?"

A lot of time when I Mirandized people I'd ask them to explain their rights to me, most all of them knew that they didnt have to say anything, answer any questions, and that they could have a lawyer present. Some agencies even use a "participating Miranda" where people are tested on their prior knowledge of their rights.

In asking for a consent to search I was always taught that the officer had to explain that the person was free to not consent, in essence advising them of their right to refuse.

Mr. X
May 21, 2005, 02:35 PM
A lot of time when I Mirandized people I'd ask them to explain their rights to me, most all of them knew that they didnt have to say anything, answer any questions, and that they could have a lawyer present. Some agencies even use a "participating Miranda" where people are tested on their prior knowledge of their rights.


Most of those folks either watched a lot of "NYPD Blue" etc. or had run-ins with the police before. People who have little experience with the law are those who are most vulnerable.

Does anyone know of any research, and I dont mean an online poll, but actual, rigorous, scientifically sound research, that has measured the general public's knowledge of their rights?

Considering many folks don't know who the VP is or the Heliocentric Theory of the Solar System, no thanks to Copernicus, Keppler or Galileo and nearly 500 years of knowledge, do you think they know something as "inconsequential" as their rights?

Interesting that she doesnt discuss children, or house guests.

Exactly what I was wondering.

Biker
May 21, 2005, 02:41 PM
I'm really not trying to jack this thread, but for the life of me, I can't find a quote function on this board. Am I missing something?
Thanks and appologies.
Biker

Vernal45
May 21, 2005, 02:57 PM
In asking for a consent to search I was always taught that the officer had to explain that the person was free to not consent, in essence advising them of their right to refuse.


I wish the cops that have pulled me over and asked if they could search had been taught that way, when I answered no, the response varied to either "if you have nothing to hide" or "we can get a warrant". The intimidation factor makes some folks cave. What academy did you go to that taught you to explain to the person that they were free to not consent? I want to send them a letter of appreciation.

centac
May 21, 2005, 04:05 PM
That's probably because motor vehicles fall under a different exception to the warrant requirement - the Carroll Doctrine. Motor vehicle searches and dwelling searches are not comparable.


Have'nt you said that you are an ex-cop?

Vernal45
May 21, 2005, 04:28 PM
California v. Acevedo [500 U.S. 565 (1991)]. Concluded that searches of containers in automobiles without a warrant were constitutional if probable cause for the search existed.

Carrol Doctrine:

Court held that a law enforcement officer would not need a search warrant to search a motor vehicle (based on probable cause to believe that an item subject to seizure was inside) if that vehicle were on public property. This is the "automobile exception" to the warrant requirement of the Fourth Amendment (also known as the Carroll doctrine).


This has not one thing, nothing, to do with what we are talking about on this thread. To put you back on track: We are discussing CONSENT SEARCHES, and citizens rights to refuse to consent


And I was really beginning to believe that you are/were a cop. :scrutiny:

centac
May 21, 2005, 05:01 PM
The point being that consent isnt needed to search a motor vehicle. We ask for consent as a means of covering all the bases, same way as we sometimes Mirandize people who are not in custody. But you know this, being an ex-cop and all, right?

You brought up motor vehicles ("I wish the cops that have pulled me over and asked if they could search......"), not me.

Vernal45
May 21, 2005, 05:08 PM
The point being that consent isnt needed to search a motor vehicle.

So, as a cop, you are saying a cop can search any vehicle, any time, without consent.

We ask for consent as a means of covering all the bases, same way as we sometimes Mirandize people who are not in custody. But you know this, being an ex-cop and all, right?

When I was a cop, unless you had PC, you could not search a vehicle. The case law you quoted said as much. If you think you, as a cop can search a vehicle at any time, without consent, I predict many cases overturned with you. A cop MUST have either CONSENT of PC to search a vehicle.



Again, this thread is NOT, I say again, NOT about vehicle searches, containers in vehicle searches. IT IS ABOUT:

Learn your rights regarding police searches

2nd Amendment
May 21, 2005, 05:21 PM
The point being that consent isnt needed to search a motor vehicle.

I think you'll want to edit that eventually...

Vernal45
May 21, 2005, 05:24 PM
NAH, dont edit it. Let people know what you really think, and let them know you are for expanded police power. Stand up for what you believe in. :evil:

centac
May 21, 2005, 05:27 PM
OF COURSE you have to have probable cause, that's a given. What possible reason could you have for searching a vehicle, or anything for that matter, for which you dont have PC?

Vernal45
May 21, 2005, 05:30 PM
BY CENTAC:

The point being that consent isnt needed to search a motor vehicle. We ask for consent as a means of covering all the bases, same way as we sometimes Mirandize people who are not in custody.


BY CENTAC:

OF COURSE you have to have probable cause, that's a given. What possible reason could you have for searching a vehicle, or anything for that matter, for which you dont have PC?


Which one is it? NO CONSENT NEEDED. Or CONSENT IS NEEDED WHEN PC IS NOT ESTABLISHED.

Derek Zeanah
May 21, 2005, 05:33 PM
What possible reason could you have for searching a vehicle, or anything for that matter, for which you dont have PC?'Cause the driver's black, or hispanic? Because he's travelling along a known drug route (think I95)? 'Cause his car is too expensive/cheap for the area he's driving around in? 'Cause you don't like the NRA sticker or the tag "TITEGRP"?

centac
May 21, 2005, 07:02 PM
OK, Let's walk thru an illegal search. Let's imagine that I have decided to put my career at risk because I dont like the way you look, cause the department isnt gonna keep me around for long if I cost them much in settlements for civil rights violations. Let's say I gave also decided to risk my car, house, savings and any other assets I lose in the 1983 action, along with paying for the attorney I'll need to defend me after the FBI launches its investigation. Think they'll cut me some slack 'cause I'm a cop? Did they for the Rodney King crew?.

OK, I've decided to gamble all that. You go cruising by, not a care in the world, and I decide I want nothing more than to hassle ya, because you are just so darn....whatever you are.

I go to pull you over and flip on the blues. But wait, that also kicks on the dashcam, so now I am going to make a videotape of me violating your civil rights. I'll just destroy the tape, right? Unfortunately it is in an armored box in the trunk that only the supervisor has a key to. Also, I've got to call in the stop, cause its the policy, letting the dispatcher make a record of the time, location, and license plate of your car. That way there is a permanent public record of the stop That also means that my boss knows what I am doing, along with everybody in scanner land. And because its what we do, any minute now another car may stop by to back me up. Of course he will also gleefully engage in the conspiracy, cause we had this meeting where all 700,000 of us decided just to mess with you. Furthermore, he or she will want to be involved, cause if they dont turn me in they will face the same penalties I do and worse because then it will be a 1985 action, conspiracy to violate civil rights.

I could go on, but why bother, logic doesnt work, why should satire? You're right it's just a big conspiracy. We just sit around the IHOP plotting and planning because you are just that important to us.

:rolleyes:

Derek Zeanah
May 21, 2005, 07:17 PM
Hey - you asked a simple question, and I gave the direct answer.

No need to get all paranoid and defensive. ;)

Sindawe
May 21, 2005, 07:54 PM
"The guilty flee where none pursue"??? ;)

At this stage in the game, I don't think its a grand conspiracy centac. The abuses that do occur are more likely the result of bad policy, bad training and bad law. At THIS stage of the game. What the future holds, few can say. But many can forsee glimpses of whats to come.

2nd Amendment
May 21, 2005, 07:56 PM
It's necessary to use words like "conspiracy" and "tin-hat" and paranoia, because to not use them would mean actually adressing the argument and real-world events. Defending the faith can't work(as well) outside of legal theory and mischaracterizing/stereotyping the opposition.

centac
May 21, 2005, 08:13 PM
"Hey - you asked a simple question, and I gave the direct answer."


Your answer implies facts not in evidence. Stopping someone or searching without PC is a violation. Does it happen? Probably. Is it common? Not to my knowledge. Are you gonna believe the media about the extent of profiling? Show me some figures that support the contention that it is common or policy and then we may agree to the extent of the problem. Otherwise it means nothing.

GRB
May 21, 2005, 08:54 PM
Let's be a little more clear on this vehicle search thing. You can search a vehicle without probable cause that anything illegal is in the vehicle. This has been allowed for many, many years. If you in fact had probable cause to arrest the driver or other occupant of the vehicle, then you would be permitted to do a search of the vehicle within arm's reach of the arrested person – and there is a difference between the PC needed to make the arrest and PC that would be required for a search and PC for a search is not needed in such an instance. (edited to add: I even think there was a ruling in NY that allowed for warantless search of the whole vehicle incident to a lawful arrest - I cannot recall if it was upheld but think it was). You can also perform an inventory search of a vehicle subsequent to the seizure or safe keeping of the vehicle (unless something changed that I have not heard about). On the other hand if a LEO makes a vehicle stop, for which by the way he does not need "probable cause", he/she does need probable cause to search that vehicle absent a warrant or consent or absent other special circumstances of which there are a few. Warrantless vehicle searches are often performed without probable cause such as a Border Search, extended border search, search at the equivalent of the border and so on.

Now back to the more on topic issue of a consent search of a residence (or of a car) after one controlling party has said "no" and the police then seek the consent of another controlling party. This is a really tricky one. Unless it was a major case of national security, or some sort of extreme exigent circumstances, I would not try to circumvent the first denial. Of course, it is possible that a consent search authorized by a second party, after a first party denial, possibly would be upheld as legal. For instance, you ask a home owner for consent to search and are denied consent and, he also denies you entry. You then ask a roommate for consent to search but limit your request to areas only used solely by said roommate. The roommate says yes and says you can come in. In the search you discover a kilo of cocaine that was hidden in a secret compartment inside of the roommate’s room by the homeowner. What would you think of such a scenario? Would the seizure be legal, should the LEOs have been allowed to seek such permission even after a denial by the homeowner to enter the home?

As for that article, there are a lot of incorrect assumptions made by the author. It would behoove her to provide some evidence as to the poor track record (her claims anyhow) of consent searches. Many departments require a record of negative searches – is that author so ill informed as to have been unaware of such – or is she just biasing the article.

Consent searches are a valuable law enforcement tool. It is so valuable that some departments do require officers to advise people they are not under any obligation to consent, so valuable that some departments require or at least provide for written consent to search forms (in multiple languages). Even if a department does not require such, it would be the wise officer who makes sure to get written consent if possible. That document is a great piece of evidence in court once a seizure has been made subsequent to a consent search. Such a document goes a long way to prevent or help win suppression hearings.

GRB
May 21, 2005, 08:56 PM
By the way, someone said you need PC to make a stop - since when?

Vernal45
May 21, 2005, 09:00 PM
Since you never replied, I will repost: your quotes are below, and contradict each other.

BY CENTAC:

Quote:
The point being that consent isnt needed to search a motor vehicle. We ask for consent as a means of covering all the bases, same way as we sometimes Mirandize people who are not in custody.



BY CENTAC:

Quote:
OF COURSE you have to have probable cause, that's a given. What possible reason could you have for searching a vehicle, or anything for that matter, for which you dont have PC?



Which one is it? NO CONSENT NEEDED. Or CONSENT IS NEEDED WHEN PC IS NOT ESTABLISHED.

centac
May 21, 2005, 09:28 PM
Vernal,

If you actually were a cop you should know this. The warrantless search of a motor vehicle is covered by the Carroll doctrine. Consent is not needed when the Carroll doctrine applies. It is separate and distinct from PC for a stop, and/or PC for a search. Mr Bartley explains it very clearly and rightly points out other exceptions to the warrant requirement or the requirement for PC. You dont need PC for a border search or an inventory search. Otherwise, why would you be searching if you didnt have probable cause?

I dont know how much simpler it can be explained, or do you just want to argue?

Vernal45
May 21, 2005, 10:46 PM
Centac, you are wrong.

Lets go over the Carrol Doctrine again, before we get this thread back on track.


Carroll Doctrine allows for warrantless vehicle searches in many cases, due to the evidence's possibility of being easily moved. But even this doesn't give blanket authority to search vehicles without a warrant. You must establish PC that evidence is there. You cant, or you should not, invoke the Carrol doctrine as a catch all. If you to, you are a JBT. If, during a stop, the Carrol doctrine is not applicable, you must have consent to search.


NOW. This was a discussion on SEARCHES WHEN POLICE ASK FOR CONSENT. It stands to reason, that if the Carrol Doctrine applies, the search will happen, consent no longer applies. The article I posted deals with the Rights of the people to not consent to searches when asked by a LEO. I fail to see why you brought up the Carrol doctrine, I suspect to muddy the waters, but oh well. Suffice it to say. If an officer asks for Consent to search, the Carrol Doctrine does not apply, nor does the officer have PC to search. And citizens have the right to refuse consent.

Centac, Please get back on topic.

You still have not answered my questions from several posts ago. I understand, you do seem more confused today. :D :neener:

GRB
May 21, 2005, 11:34 PM
If an officer asks for Consent to search, the Carrol Doctrine does not apply, nor does the officer have PC to search.I understand what you mean but, this logic is faulty. Even if the officer believes he has PC to search a vehicle, he may decide to ask for consent. Just because he asks for consent does not mean he does not have PC. It is a sort of failsafe in the event the PC is later thrown out in a sppression hearing. Likewise if the consent is thrown out, the PC may be upheld. While one may be thrown out, it is less likely that both would be. Having both PC and consent is better than just PC.

If, during a stop, the Carrol doctrine is not applicable, you must have consent to search. I agree the Carroll doctrine requires PC for a search; however your statement above is not absolutely correct. Not all stops and searches are under the purview of the Carroll doctrine. As for requiring PC to search a vehicle without a warrant, yes that is normally when the Carroll doctrine appies; however, there are instances when PC is not required to search a vehicle as I pointed out above. Searches are frequently carried out incident to a lawful arrest without PC for a search. Searches in border type situations by federal officers are carried out frequently with absolutely no PC. There are exceptions to requirng PC or consent for a vehicle search.

All the best,
GB

DMF
May 21, 2005, 11:43 PM
If an officer asks for Consent to search, the Carrol Doctrine does not apply, nor does the officer have PC to search. No, not true at all. I have often asked for consent even though I didn't need it. So just because the Carroll Doctrine applies, does not mean the officer won't ask for consent before using the his authority under the Carroll Doctrine. The same is true of warrants. Many time I've had the warrant signed by the magistrate in my pocket, but still asked for consent. So just because the officer asks, that does not mean he doesn't have authority to search.

Vernal, you claim to have been a cop, but each time you post on LE related issues I doubt that more and more. ANY cop who did the job as long as you claim would know things like what I've posted above, and some of the other things I, and other cops on this forum, have explained before. I'm not saying you're lying, but let's just pretend my name is Thomas, and I'm from Missouri.

cropcirclewalker
May 21, 2005, 11:51 PM
I'm sorry if I can't get the thread back, but Mr. Centac says that a cop who does an illegal search is risking his home, yada, yada, yada, from a civil suit.

Some here may remember my problem......I was arrested at the St. Louis Airport for committing a lawful act. Back in 2002 (I think the statute of limitations has run) they (leos) saw a pistol on the seat of my car. This was before MO passed the law allowing concealed firearms in yer car and just more than a year after 9/11.

Open carry in MO was and still is LEGAL and when I pulled into the short term parking lot there was this big sign, "WARNING ALL VEHICLES WILL BE SEARCHED". Since it would have been a crime to conceal my piece and not a crime to leave it on the seat, I drove up to the rentacop and said, "I have a firearm in my car. Will I be allowed to park here?"

People in the Lou are not used to us country folk asserting our rights. He got bug eyed and called the cops.

To make a long story short, I was told to park in Long Term. Before I got there, I was stopped, arrested, hooked up, big scene, sitting handcuffed on a curb while bomb sniffing dogs searching my car, cops everywhere, other flight passengers etc walking past looking at me like I was a terrorist, chained to a bench for a couple of hours and then given my dissassembled piece and told not to return with it.

I was arrested. I was released without being charged. Nobody asked me for permission to search my car. The just did it.

Mr. Centac, you say that no cop will risk his house for an illegal search. Did I get illegal searched? Is committing a lawful act probable cause? Is a cop's ignorance of state law probable cause?

I emailed a reputable firearms lawyer here in MO. and asked him if I had a case to sue. He replied that he thought if I didn't get charged I was lucky. He further said If I got charged, I could employ him to help me get out of it.

Where is all this civil rights stuff you are talking about?

edited to add.......
Mr. DMF, I see that you were replying as I was typing myself. Since the sound of these crickets is getting to be pretty loud, and since you know so much about everything legal.......What exactly is the statute of limitations of the crime of deprivation of one's civil rights under the color of law? The more I think about this, the more I think I want to own some leo's house.

Vernal45
May 22, 2005, 12:19 AM
The same is true of warrants. Many time I've had the warrant signed by the magistrate in my pocket, but still asked for consent. So just because the officer asks, that does not mean he doesn't have authority to search.

SO, you ask for consent, even though you have a warrant. Let me guess, if you have consent it lets you search everywhere, where as normally there are restraints on a warrant, depending what Item is being looked for. If you can search, PC, warrant, Carrol doctrine, then search. There mere aspect that you ask for consent tells me that there is something in smelly in your PC.

Glenn Bartley, I Understand the other instances that you cite. My point on this, before DMF's little brother Centac hijacked it, is if you are asked for consent to search, you can say no. NOW, if the officer has reason, PC, the the asking for consent is not needed. As I said above, the only reason I see asking for consent, if you already have a warrant, is to get around the constraints of the warrant.

DMF, if you want to email, hell, I will provide my phone number to you, to verify my experience, please feel free to do so.
Call me a liar, dont care, I can prove my service. For all I know, you could be a 12 year old nerd, sitting in mommys basement, and have a nack for computer research. :neener:

GRB
May 22, 2005, 12:42 AM
I Understand the other instances that you cite. My point on this, before DMF's little brother Centac hijacked it, is if you are asked for consent to search, you can say no. NOW, if the officer has reason, PC, the the asking for consent is not needed.I agree with this however, it is good policy for an LEO to ask for consent even if the searching officer thinks he has PC. You have to understand that even though you believe you have PC, a whacko judge may not think so and may suppress evidence seized under what you thought had been good PC. It has happened before and will happen again.

Sorry if it seems I am getting involved in some ongoing feud between you and others, that was not my intent at all.

**********************************************************
Cropcirclewalker,

I was arrested. I was released without being charged. Nobody asked me for permission to search my car. The just did it. Was the arrest lawful? The officers do not have to charge you for their arrest of you to have been lawful. If you were in the car when they legally arrested you, and then searched the car, it was probably a legal search. They may have had all the PC they needed to arrerst you legaly, are you sure you know what the parking attendant told them. Are the laws about carying at the airport the same as those in areas off of the airport property. There are a lot of variables here.I am not saying it was agood arrest and a good search; maybe it was and maybe it wasn't. Without all of the facts it would be hard to tell.
*********************************************************

All the best, GB

DMF
May 22, 2005, 03:59 AM
SO, you ask for consent, even though you have a warrant. Let me guess, if you have consent it lets you search everywhere, where as normally there are restraints on a warrant, depending what Item is being looked for. If you can search, PC, warrant, Carrol doctrine, then search. There mere aspect that you ask for consent tells me that there is something in smelly in your PC. You "guess" wrong.* Well once again you make wild conclusions that aren't true. On the occasions I do it, the reason I ask for consent, despite having a warrant, is it is less confrontational. If you can talk to someone calmly and get their consent it's much less upsetting than just shoving the warrant in front of them, and demanding entry. You see, contrary to what you and some others choose to believe, the vast majority of cops want to do things in a manner that lower confrontation.

It's not always reasonable to stand at the door chatting and asking for consent, but when the circumstances allow it, it helps keep things low key.

*Again, a cop should know this type of thing, rather than having to guess.

If a 12 year old living in the basement can figure it out, a former cop should be able to also.

Crosshair
May 22, 2005, 10:48 AM
I view this whole "Click it or Ticket" crap as another way for cops to try and search you're car. It was helped mostly by busybodies who have nothing better to do than boss other people around. Yes seatbelts do save lives in most cases, but it is MY car and I will do what I want with it. It's my problem if I go flying through the windshield and end up as a vegie.

I don't want any "But society pay's for that too. Waaaaaaaaa." Yes they may get stuck with the bill in some cases. But I get stuck with outrageous car insurance rates because some young male drivers like to wrap themselves around trees. I have to pay higher prices beause some people can't figure out that wet floors are slipery and other stupid lawsuits. We have to go rescue stupid skiers and mountain climers when they get lost/stuck/fall off cliff/ etc. Just let me get from point A to point B, let me smoke in a bar, and above all shut up you're screaming little kid on the airplane.

/end rant

cropcirclewalker
May 22, 2005, 11:44 AM
Hi, ho, Mr. Bartlely, Crop here:
Was the arrest lawful? A cop on a bike rode up to the Missus who was waiting on the sidewalk for me to come help her check in. Gave her a note with his name, phone no. and wrote, "Arrested for having a gun". The officers do not have to charge you for their arrest of you to have been lawful. Isn't there supposed to be like, Probabable Cause? They can't just go around Lawfully Arresting people for having guns. If you were in the car when they legally arrested you, and then searched the car, it was probably a legal search. They may have had all the PC they needed to arrerst you legaly, are you sure you know what the parking attendant told them. I heard the complete exchange on the Rent a cop's Talkie.
RAC: "Hey, Officer Friendly (name changed to PTI), Theres a guy here who wants to know if he can park in Short Term with a Weapon in his car".
OF, "Is it loaded?"
RAC, bug eyed and looking down at it on the seat, "Yeah."
OF (quoting his understanding of FOPA, "Tell him he has to have it locked in the trunk in a container with the ammo in a separate container."
Me; "Tell him I don't have any containers in the trunk and ask him where is the lawful place for me to park."
RAC, repeats the question, still bug eyed and looking at the piece.
OF, "Tell him to park over in the long term lot."
Me; "I heard him, can you help me back out onto the circle?"
RAC: "OK" Are the laws about carying at the airport the same as those in areas off of the airport property. I was on the roadway going through the airport.

......The state of Missouri is OPEN CARRY. The legislature, however legislated that individual cities, municipalities, counties, political subdivisions or whatever can prohibit by ordinance open carrying and yet still at that time it was a felony to have a concealed firearm in your vehicle. It didn't have to make sense, it was just the law.

The city of The Lou had prohibited open carry. The St. Louis Airport was/is owned by The Lou but is not within the city limits. The State Legislature has enacted that the St. Louis Airport is it's own political subdivision. I guess tax loopholes or something. There was no ordinance prohibiting open carry at the airport.

If there was don't you think they would have charged me?

I got the police report. In it is said, "The St. Louis County Prosecutor was asked and refused to prosecute. In the report they contacted FBI, no violations. A FBI guy came to the door of the room which had the bench with the pad eye in it to which I had been chained. Stood there for maybe 2 minutes, silent, looking at me like a dolt. If the great apes at the zoo have self awareness, I know how they feel.

I don't know what the fibbi was thinking, but I just looked back at him, silent, chained to my bench and thought.."What is this guy's problem?" I guess it's the arrogance of authority.

This whole thing was a circus. I was completly cooperative during the whole abuse.

One cop (after it became obvious that I would not be charged), offered to buy my piece. I hadda 'splain to him that he had to get permission from his CLEO.

One big fat woman seargant came in and asked, "Is this gun registered?" I smiled and said, "Yer not from around here are ya?" She said "ILLinois, why?" I said, "In Missouri we don't register guns."

The cop who had been talking on the talkie to the RAC came in said, (something like) "They are next door trying to figure out what you will be charged with."

Later, he came in and hunkered down in front of me where I was still chained and said, "It looks like they found some little known loophole. It seems like you were on a "Lawful Journey" (maybe he said "peaceable") and that is an exception so maybe we won't charge you." I replied, "Sir, the law you are referencing is the "concealed weapon" law. What I was doing is called Open Carry, which is lawful in Missouri."

It's like his eyes glossed over. He could not conceive of a citizen lawfully open carrying.

Sorry for the verbosity. I was committing a lawful act. The only way one could have probable cause is if one was ignorant of the law. Lawful Acts at that time were not crimes.

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