Plain View Rule


PDA






Cyborg
December 7, 2008, 12:14 PM
I am not sure if most here are aware of the "plain view rule". That rule says that LEOs can act on any contraband that is in "plain view" in a vehicle. No search warrant is required in that case because the contraband was in "plain view".

In the thread on accidentally carrying in a prohibited place some one mentioned i have a suv, so it is not like there is a trunk. Actually the plain view rule has limitations where SUVs, passenger vans, mini-vans, station wagons and the like are concerned. The area behind the last row of passenger seats is effectively the vehicle's trunk and is exempt from the plain view rule. The bed of a pickup is NOT excluded since it is an open area but the area behind the last row of seating in one of the vehicles I mentioned above IS.

That being said, you still might not be safe leaving contraband visible in the back of an SUV because while the area might not apply under the plain view rule, it WOULD be fair game for a search warrent. Evidence that is not usable in court IS usable to establish probable cause for a search warrant.

I know this because I went through most of the Basic Peace Officer course at the local community college but didn't finish because I ran afoul of an a**hole teacher who is known to get rid of at least one student out of every class.

BTW, just having a weapon in your vehicle on any school property in Texas is a felony. Even if you don't do any jail time, convicted felons cannot legally own a firearm for 5 years AFTER they have completed all jail, probation, parole time and paid all fines in full.

--------------------------------------------------------------------------
Cyborg
Burying your head in the sand only makes your a** a better target.

If you enjoyed reading about "Plain View Rule" here in TheHighRoad.org archive, you'll LOVE our community. Come join TheHighRoad.org today for the full version!
nalioth
December 7, 2008, 12:38 PM
BTW, just having a weapon in your vehicle on any school property in Texas is a felony. Even if you don't do any jail time, convicted felons cannot legally own a firearm for 5 years AFTER they have completed all jail, probation, parole time and paid all fines in full. This is news to me. Got a link to the law?

Ringer
December 7, 2008, 12:49 PM
Isn't "Contraband" by definition something that is illegal/prohibited by law? If so then why would even discuss when an LEO can or cannot act on it since we don't discuss illegal activities here?

What am I missing with the relevance of this thread?

Thanks

NukemJim
December 7, 2008, 01:10 PM
Even if you don't do any jail time, convicted felons cannot legally own a firearm for 5 years AFTER they have completed all jail, probation, parole time and paid all fines in full.


Uhmm.. you might want to check with BATFE about that. I believe that they have a slightly different viewpoint on that. My understanding is that if you are convicted of a felony you can no longer possess a firearm without a pardon or some equivalent legal clearance.

As always I could be wrong

NukemJim

Treo
December 7, 2008, 01:39 PM
First I’m going to recommend (again) that everyone reading this thread pick up a copy of “You And The Police” By Kenneth W. Royce (writing as Boston T. Party) Javelin Press Copyright 2005>

Now I’m going to quote it on this topic.

If the interior of your car is entirely open (such as vans and station wagons) its entirety is vulnerable to a TERRY frisk since the whole car would probably be considered within your immediate control. This is more fully discussed in chapter 7.
Small station wagons and hatchbacks usually have a privacy shelf that Rises and lowers with the rear door. If your car hasn’t such a shelf you should construct one to preclude (as with a trunk) any possibility of interior access to the rear.

Another tidbit from the book

The police exist to arrest criminals. During any confrontation with the police there is at least some risk that you could be arrested. Remember, they wouldn’t be talking to you in the first place unless you were somehow a potential customer.

And finally

If a cop asks to search your property all sorts of warning bells should go off. Understand this there is never any real advantage to a constented search. Always, always, always refuse consent. I don’t mean often or usually I mean always! If you learn nothing else from this book you’ll probably fare well.

Steve in PA
December 7, 2008, 04:16 PM
If I can see the area behind the last seat, anything I see is in plain view. Don't know who told you it is considered a "trunk" bu they are wrong.

As long as I didn't open or move anything to see the contraband.....anything I see within my sight is in plain view.

The only are open to frisk, incident to an arrest is the area immediately reachable by the driver. If I arrest a driver, I can't search the rear most area of the van just because it is "open".

WardenWolf
December 7, 2008, 04:56 PM
there is never any real advantage to a constented search. Always, always, always refuse consent.

Absolutely. Many, many people have gotten arrested because they allowed an officer who ASKED to search their vehicle to do so, and gotten nailed for something they may not have even known was there or something they didn't even know was illegal. Cars are inherently messy. Things get dropped, lost under seats, etc. Letting an officer into your car is letting him into your personal life.

And what can you gain? If you let them search your vehicle, what could it possibly do to help you? It's not going to get you out of a ticket. It's not going to get you out of being arrested if the officer already has reason to arrest you. The ONLY thing it can do is get you in trouble. Always, ALWAYS refuse consent.

waterhouse
December 7, 2008, 05:27 PM
Actually the plain view rule has limitations where SUVs, passenger vans, mini-vans, station wagons and the like are concerned. The area behind the last row of passenger seats is effectively the vehicle's trunk and is exempt from the plain view rule.

Are you a lawyer, and do you have some sort of case law that backs this up?

I am not a lawyer, but I was in law enforcement and had several hours of lawyers teaching us about plain view. I don't recall any special limitations on plain view in SUVs etc, so now I am curious.

I was in the Border Patrol. If I looked in to the back of your SUV and saw a foot sticking out from a blanket, I'm fairly certain that the person being smuggled under the blanket is in plain view.

there is never any real advantage to a consented search.

I agree that you should never consent to a search, and that I would probably never do it, but there can be real advantages to doing such. Namely saving time.

If I get notice that there is a blue sedan with a cracked windshield smuggling marijuana, and I see a blue sedan with with a cracked windshield and only a driver (no passengers) riding very low on the suspension, I have reasonable suspicion to stop the car and question the driver. I don't have the probable cause to search the trunk, but I can call in a K9 unit, which may take 5 minutes or 2 hours. If the driver has a trunk full of cinder blocks for his home project, he can save a lot of time by opening the trunk.

That example may sound far fetched, but I've been involved in very similar cases. The driver opened the trunk, and even offered to open his bags of cement to show us there were no drugs. He was on his way in under 3 minutes.

7.62X25mm
December 7, 2008, 06:22 PM
Beyond "assuring reasonable officer safety" an LEO may not look through the windows into the interior of you vehicle.

That's considered a "search," and without "probable cause" is barred.

They can glance into your back seat to insure there's no one there with a gun, in waiting, but they can't examine the stuff on your floor in the back seat.

This all gets very "iffy" and the officer can generally argue "probable cause" -- particularly if something is out "in plain view."

If you have, for example, a range bag on the seat, he can establish "probable cause" that it "may contain a firearm" and therefore is entitled to search the contents of the bag.

If there's a gun in the bag, and it's somehow unlawful, that provides grounds for search of the entire vehicle.

Never consent to a search! Refusal to consent to a search does not establish probable cause.

Ask: "Am I under arrest?" And "Am I free to go?"

The LEO has the option to "detain" and so long as you don't request to leave, he can assert that you were remaining at the scene voluntarily.

When you ask "Am I free to go?" The officer then needs to establish grounds for detention, or arrest, or probable cause. He can't detain you unreasonably without cause.

But you can avoid ALL this by not being a jerk. Don't give the police a reason to stop and question you.

That's not hard to do.

Treo
December 7, 2008, 06:44 PM
But you can avoid ALL this by not being a jerk. Don't give the police a reason to stop and question you.

That's not hard to do.

No but I suspect it's going to become more & more difficult as time goes on

cassandrasdaddy
December 7, 2008, 08:01 PM
It's not going to get you out of a ticket.


i have first hand experience that belies that

Treo
December 7, 2008, 08:39 PM
CASSANDRA'SDADDY
i have first hand experience that belies that

Somehow I suspected that if anyone on this forum would, it would be you

The above is how I handle it if you choose to waive your rights which is exactly what you do as soon as you open your mouth and start volunteering information or consent to a searh . that's your business. I hope it works for you

deaconkharma
December 7, 2008, 08:44 PM
I know an officer or two who will find things to write you for if you refuse. One used an example of a few "Hotel Mike's" (HM or Hispanic Males) Who refused a search. They got tickets for tread, improperly displayed tag, tag light, and a couple of other things I forgot. I am not advocating refusal, nor compliance... but just know that some police don't take kindly to a "No" and will write you tickets for all kinds of things they can write, tread on your tires if they find the tread too worn etc... Weigh your options as far as time and what tickets you will/could be getting. Especially if your car is not well maintained.
Many people make refusal out to be all rosey and warm and fuzzy. This rosy picture aint always so. Just letting you know a refusal is not a Crucifix and the cop Bella Lugosi. ;)

Cyborg
December 7, 2008, 08:49 PM
No, waterhouse, I am not an attorney nor am I currently a TCLEOSE Licensed Texas Peace Officer. But when I was in the Basic Law Enforcement class at San Antonio College we were told by a 20+ year veteran that the area behind the last seat is off limits as regards the plain view rule. We were also cautioned that even a stop requires reasonable suspicion (i.e. an objective and articulable suspicion) as opposed to mere suspicion. A frisk is NOT a search but a safety measure to keep the officer and any bystanders safe.

But then we were also taught that a consentual search has an advantge over one pursuant to a warrant - i.e. it can be terminated at the consenter's discretion. Of course that was in the context of a search of a residence. Another advantage is that if you consent to the search you are allowed to remain in the home while it is being searched. You also want to be sure to actually READ the search warrant. It has to specify what the object of the search is. If they are looking for a 27" television, they shouldn't be looking in drawers.

Ringer, I am not in any wise advocating activities that are an offense under any State's laws. Only trying to clarify the limits the police have.

NukemJim, I was referring to Texas law when I mentioned the 5 years. I don't know about BATF although I have heard they have some pretty arcane interpretations of the law. Wasn't the wonderful party at Waco a few years back a BATF thing intitially?

I have voluntarily submitted to a search before. Got caught at the check station on I-10 east of El Paso. Cost me 2 1/2 hours of standing in the hot sun with no shad, no water and people goggling as they went by wondering what kind of criminals we were. Also had to prove to the dip****s that my daughter (ethnic Japanese but American citizen by birth) really was my daughter and really was a citizen. No she doesn't look the slightest bit hispanic. Fortunately, when she was growing up we always carried certified true copies of her Birth Certificate, Consular Report of Birth and the Adoption Decree with us whenever we went out of town. If they ever ask to search again they're going to have to get a warrant. They'll probably flip out when they find the Uzi Eagle I carry in the glove box whenever I leave the house.

This pretty well sums up my feelings about Washington:

Tramp, tramp, tramp, tramp,
The Jackboots are marching.
Tramp, tramp, tramp, tramp,
They’re comin’ now for you.
Tramp, tramp, tramp,
Just forget the constitution.
The jackboots are marchin, boys,
Whatcha gonna do?!

Cyborg

Frog48
December 7, 2008, 09:08 PM
BTW, just having a weapon in your vehicle on any school property in Texas is a felony.

No its not, and I wish people would quit perpetuating the myth. The law prohibits weapons on school's premises. If you read further, "premises" is defined narrowly as the school buildings themselves. The exact language from the Texas Penal Code:

"Premises" means a building or a portion of a
building. The term does not include any public or private driveway,
street, sidewalk or walkway, parking lot, parking garage, or other
parking area.

Treo
December 7, 2008, 09:11 PM
but just know that some police don't take kindly to a "No" and will write you tickets for all kinds of things they can write, tread on your tires if they find the tread too worn etc... Weigh your options as far as time and what tickets you will/could be getting. Especially if your car is not well maintained.

So you'd really want a cop that crooked to search your car?

cassandrasdaddy
December 7, 2008, 09:43 PM
is it crooked if the offenses are real? they have discretion as to how/what they write. just as you can stand tall and say what you want. if he makes up stuff its crooked.if you are hiding something you can skate on go for it. if they have you fair and square the posturing is just that posturing

cassandrasdaddy
December 7, 2008, 09:46 PM
cyborg
i am1/2 japanese and folks think i'm latino fairly often
to round eyes we all look alike

franconialocal
December 7, 2008, 10:12 PM
I've got to say.....seems to be alot of ignorance about the way the law actually works here.

If it is in plain view it's up to the plain view doctrine. Case closed.

--Even if it's on the floor of the back seat
--Even if it's in the utility area of an SUV

"Beyond "assuring reasonable officer safety" an LEO may not look through the windows into the interior of you vehicle. (WRONG)

That's considered a "search," and without "probable cause" is barred. (WRONG....to go INTO the vehicle and search is when this applies. I would need probable cause or a warrant, and if your vehicle is being towed I have to look through the vehicle anyway to do an inventory so I'm exempt there as well.)

They can glance into your back seat to insure there's no one there with a gun, in waiting, but they can't examine the stuff on your floor in the back seat." (WRONG)

SORRY, BUT THIS IS TOTALLY INNACURATE INFORMATION!!!!

Dashman010
December 7, 2008, 10:29 PM
Actually the plain view rule has limitations where SUVs, passenger vans, mini-vans, station wagons and the like are concerned. The area behind the last row of passenger seats is effectively the vehicle's trunk and is exempt from the plain view rule.

This is simply inaccurate. There is NO case law which supports this premise. An item has to meet 3 conditions. (1) Be in "plain view" - which means able to be seen in it's present state. A back compartment of an SUV that is windowed and an officer can see into is definitely in "plain view". (2) the initial intrusion that enables the police to view the items seized must be lawful and (3) the police must have probable cause to believe the items are contraband or stolen goods.

Cyborg, if you can show some case law that says otherwise, I'd be all ears. But as it is, I can't find any distinction for this anywhere, whether or not a cop, class, or other non-caselaw source told you so.

deaconkharma
December 7, 2008, 10:31 PM
Read it ALL
I never said "I WANT" them searching. Look over the whole post.
I'm just saying it like it is. Weigh your options. You know I am not one to be searched (refer to the "to inform not inform thread") and so make sure I am good to go as far as keeping my stuff in check and well maintained... so as to avoid any Ticketing retributions for saying no. I just think people should know that the Cop is not likely to run away after you saying no like you splashed him with Holy water. If they can cite you for something in retaliation, they may, and do, and People should know that. Sometimes it is worth it to take the tickets and decline search, sometimes it is not.( such as you drive a beat up old Nova with no tread, a burnt out tag light, cracked tailight, a busted windshield, no horn, and one headlight and have nothing hidden) I never advocate consent, but then I do what I can to make sure I can decline with relative safety from any extraneous tickets. I personally have 98% of the time gotten the ticket for what I was stopped for anyhow, so no reason to be buddies with the cop. Anyway it's just info, use it for that so that when you decline, you have covered yourself appropriately. I'm not sayin... I'm just sayin... ;)

WardenWolf
December 7, 2008, 10:40 PM
If I ever am stupid enough to let a cop search my vehicle for whatever reason, the first thing I will tell him is, "Be advised, there is a cased firearm in the door pouch." Why? Because (1) it's legal to carry that way, and (2) he's going to find it anyway, and I'd rather I tell him about it rather than him find it.

Arizona law clearly states (this is the NRA short version; the official document uses almost the exact same wording, but uses a lot of section references so you have to jump around):

It is unlawful to carry a firearm concealed within the immediate control of any person in or on a means of transportation. This does not apply to firearms carried in a case, holster or scabbard in a means of transportation or a storage compartment, trunk, pack, luggage, or glove compartment of a means of transportation.

Long story short: if the firearm is laying loose on the seat, or is stuffed loose under the seat, it's illegal. If it's in a case or holster, it can be anywhere. This law works beautifully because, guess what? Gangbangers don't bother with fancy holsters or cases. A responsible gun owner is going to do it right.

Cyborg
December 8, 2008, 09:27 AM
UNCLE! :eek: I give! King's X for criminy's sake! :cuss:

I stand corrected (sit actually ;) ) I was relaying information which I received in a class to prepare for the Texas Basic Law Enforcement Officer Examination. I very clearly remember Sgt. Furr telling us about the limitations to the plain sight rule (which in context probably is limited to the way it is interpreted in Texas vs NH, with all due respect to franconialocal). We were tested on that area so it may well be accurate. Still no reason to argue and the safest course for Van, SUV, etc. drivers is to keep anything you don't want seen/stolen out of sight.

I do not openly carry a weapon in my vehicle ever. I would not do so simply because any Peace Officer who saw it might be having a really tough day and could overreact. When I travel, my Uzi Eagle goes with me - in the glovebox where I can reach it and locked there when I get out of the car. If it is not visible to casual view and he cannot find it absent a search warrant (which he is FRAKKING WELL gonna need if he wants to search me and I do not care how many nit noy, charley sierra citations he writes) then as far as the LEO is concerned the weapon is not there. If the day comes that we can openly carry in Texas then Miss Vickie (named the UE for my wife so her mojo guards me when I carry it on duty) will sit in her holster on my left hip.

I am so very sorry I ever said anything here. :banghead: not a nice room.

waterhouse
December 8, 2008, 09:33 AM
Beyond "assuring reasonable officer safety" an LEO may not look through the windows into the interior of you vehicle.

That's considered a "search," and without "probable cause" is barred.

Are you a lawyer, and do you have any case law that shows this is true? I've had lawyers follow me through training scenarios where we cupped our hands against a window to cut down the glare before we carefully looked through the window. None of them ever informed me that I was breaking any law.


I have voluntarily submitted to a search before. Got caught at the check station on I-10 east of El Paso. Cost me 2 1/2 hours of standing in the hot sun with no shad, no water and people goggling as they went by wondering what kind of criminals we were. Also had to prove to the dip****s that my daughter (ethnic Japanese but American citizen by birth) really was my daughter and really was a citizen. No she doesn't look the slightest bit hispanic. Fortunately, when she was growing up we always carried certified true copies of her Birth Certificate, Consular Report of Birth and the Adoption Decree with us whenever we went out of town. If they ever ask to search again they're going to have to get a warrant. They'll probably flip out when they find the Uzi Eagle I carry in the glove box whenever I leave the house.

Just to be clear, this was at a Border Patrol check station, correct? And when you say you voluntarily submitted to a search, do you mean that you let them go through your car and it took 2 hours, or do you mean that the agent at the primary lane had reasonable suspicion that your daughter may not have been a citizen so he asked you to go to a secondary (so that traffic could keep passing through the primary lane) while someone tried to clear up the reasonable suspicion, which took 2 hours?

Also, just something to consider, while the vast majority of illegal aliens entering the US from the southern border are from central or south america, there is still a fairly large number of Indian, Chinese, and other Asian nationals who come in illegally across the southern border. The fact that your daughter does not look latino has nothing to do with reasonable suspicion.

waterhouse
December 8, 2008, 09:46 AM
I am so very sorry I ever said anything here. not a nice room.

It isn't that it isn't a nice room. This is the legal section of a firearms forum. There are many, many misconceptions about many firearms laws, as well as other laws.

What happens over time when someone posts something as fact is that it starts getting repeated. Soon enough, many people are posting it as fact. So when we see something that doesn't quite look right, (i.e., it may not actually be factual) we try to figure out where the information came from. It helps if the information comes from an actual law or case law interpretation of an actual law. The reason people jump in to quickly correct things is that hopefully the error won't spread to far.

Don't feel bad for posting what you posted. There are many people in the forum who might have never heard of plain view doctrine, and they will learn something by reading the thread you started.

I've learned lots of things this way. That is why I try to be careful to ask if the poster is a lawyer, because I have been corrected on the fine points of law many times by guys who went to school to learn it and work every day with some of the laws being discussed.

NukemJim
December 8, 2008, 09:55 AM
Cyborg posted
I am so very sorry I ever said anything here. not a nice room

Cyborg, as I think you can tell from many of the responses, (please verify yourself if you do not believe) the information you were giving out in the initial post seems to be incorrect.

Warrantlless searches are a very hot topic in the "Gun Culture" (Copyrighted by John Ross:p ) both due to possible jail time for innocent actions*, and the temperment of many of those in the "Gun Culture".

When you post inaccurate info on such a subject you will generate controversy.

When you attmpt to defend inaccurate infor you fan the flames. IMHO if you post something you find out is wrong, go back edit your post either correcting the erroneous data or recplacing it with a "Never Mind" notice.

Please do not hold hard feelings.

Best wishes

NukemJim






(*Example after a weekend of shooting with my 3 of my nephews in Michigan a .22 round falls under a seat. I drive to work in Chicago. I get pulled over, searched, and the round is found. Possible jailtime for me, unless I have a gun registered in Chicago in that uses that ammo. Since I do not live in Chicago that is not possible.)

MGshaggy
December 8, 2008, 10:09 AM
I stand corrected (sit actually ) I was relaying information which I received in a class to prepare for the Texas Basic Law Enforcement Officer Examination. I very clearly remember Sgt. Furr telling us about the limitations to the plain sight rule (which in context probably is limited to the way it is interpreted in Texas vs NH, with all due respect to franconialocal). We were tested on that area so it may well be accurate. Still no reason to argue and the safest course for Van, SUV, etc. drivers is to keep anything you don't want seen/stolen out of sight.

In Cyborg's defense, the rule he was given in class and repeated here in his first post may well be the rule in his jurisdiction. That particular jurisdiction may be one where the ability of LE to use the plain view rule is more restrictive than than it could be either by law or by department policy. Just because the constitution (under current case law) permits the government to go further in a search doesn't mean every jurisdiction must go as far as constitutionally permissible.

KenW.
December 8, 2008, 10:28 AM
In accordance with the "plain view" doctrine, If I as a law enforcement office, am in a place I am allowed to be, see any contraband in plain sight, I may take action. Whether its interviewing a complainant on his back porch and notice a marijuana plant in the neighbors backyard, or glance into the back of a van.

In other than exigent circumstances, it is preferable to use my observations to justify a search warrant though.

KenW.
December 8, 2008, 10:35 AM
Oh, and I may also use items available to the general public (such as binoculars) to enhance my senses.

Once again, unless its an emergency, it is preferable to get a search warrant.

Cyborg
December 8, 2008, 01:29 PM
waterhouse, they searched the frakking van top to bottom, stem to stern, all but tore the freaking thing apart. They took their own sweet time about starting - AFTER they ordered us out of the vehicle - and then pulled everything out of the vehicle and glove box. Meanwhile every vehicle that passed through had all its occupants with their noses pressed up against the glass goggling at the "criminals" who were getting their car searched. They never apologized for our time or trouble. They did not offer to get my wife or 16 year old daughter water or let them get out of the sun. And then when they were finished, without so much as a "by your leave" they went on to other things leaving my Wife, daughter and I to put everything back into the vehicle - INCLUDING the spare tire and jack!

The stop had nothing to do with my daughter's nationality or citizenship. They never asked for any of the documentation on my daughter. Any fool can see she isn't Hispanic and since she was with us and spoke unaccented English she self-evidently was not an illegal.

I later found out that there had been an incident involving a white, full-sized Ford Van that they were apparently looking for. Why they stopped my Bronze Dodge Grand Caravan minivan I'll never know. I do know that if they or the numbnuts running the checkpoint on I-10 between El Paso and Las Crucis ask me to allow a search I will politely but firmly tell them "No". I will also put my phone on full video and audio record from the time we stop until we are allowed to leave.

The kicker to all this is that if they wanted to catch illegals all they'd have to do is wait on the banks of the Rio Bravo in El Paso. Pretty much every time I have come through in daylight hours I have seen folks wading accross the river in broad daylight. Plus, anybody that can read a map can see a couple of dozen ways to get into NM or Texas without driving on the Interstate past those checkpoints. I keep expecting to be asked for my "papers".

Of course a lot of this would be avoided if more cops remembered that they are NOT the Law, neither are they ABOVE the law; they only ENFORCE the law.

Tramp, tramp, tramp, tramp,
The Jackboots are marching.
Tramp, tramp, tramp, tramp,
They’re comin’ now for you.
Tramp, tramp, tramp,
Just forget the constitution.
The jackboots are marchin, boys,
Whatcha gonna do?!

Cyborg
December 8, 2008, 01:43 PM
In Cyborg's defense, the rule he was given in class and repeated here in his first post may well be the rule in his jurisdiction.
Thank you, MGshaggy. From the answers waterhouse gives he is one of the cops I would give a wide berth. I would not be surprised if he didn't write me a whole book's worth of citations if I refused to allow his "consentual" search. That would be OK because I would demand a trial by jury and would introduce the recording I made as evidence.

NukemJim, the information I gave was exactly as I was given it. I went back and checked my handouts and class notes. So I DO NOT accept that the information I gave out was incorrect. If it was limited to the jurisdiction in which I live then I will gladly accept that.

KenW, you might want to check on what exactly is fair game under "plain view" when it comes to the curtelage around my land. Also, if I have a six-foot privacy fence what they can do to look into my yard.

Cyborg
Cops don't like me 'cause I know more than most civilians what their limits are.

waterhouse
December 8, 2008, 01:51 PM
I can't speak for the El Paso checkpoint, I worked in Laredo, but they should all be run the same way. The first thing that should have happened is they should have told you why you were being sent to secondary. Usually it is something like:

"Good afternoon Sir, I'm Agent X, US Border Patrol, the reason you were sent to secondary is that a K9 hit on your car. Please step out of the car and stand over here. The same dog will be over at the earliest possible time to check the car again."

or

"The agent at primary had a question about your documents . . ."

or something like that.

There are 2 main reasons why everyone gets out of the vehicle:
1) it is easier to see everyone's hands
2) the dogs are trained to smell hidden passengers

If there are no visible people in the car, and the dog smells something, it is either a hidden person or hidden drugs.

So that is why you were asked to exit the vehicle.

They shouldn't have touched anything in your vehicle without a positive hit from a dog, which gives probable cause. I wasn't there, so I can't speak to what happened.

The kicker to all this is that if they wanted to catch illegals all they'd have to do is wait on the banks of the Rio Bravo in El Paso.

I promise, they are doing just that, and they are using all sorts of fancy technology as force multipliers as well. Unfortunately there are only so many agents for many miles of border, and after you catch someone you essentially have to leave your post to bring the criminal in and start rolling their prints and doing paperwork. With the lack of manpower, it is no wonder that some people manage to get through the first line of defense, so they also have checkpoints on the major roads heading north, as well as temporary mobile checkpoints that they can put up to "surprise" those enterprising folks who looked at a map to find another road.

It isn't a perfect system, and I had a lot of problems with it all, which is why I left, but they do a heck of a job with the resources that they have.

waterhouse
December 8, 2008, 01:54 PM
From the answers waterhouse gives he is one of the cops I would give a wide berth. I would not be surprised if he didn't write me a whole book's worth of citations if I refused to allow his "consentual" search.

Please let me know which post I made led you to believe I was in favor of writing a book's worth of citations (assuming the double negative was not a round about way of saying you thought I wouldn't write a bunch of citations? I make that assumption based on the wide berth comment.) I never wrote a citation in my life. We didn't give tickets for entering the county illegally, we just arrested people. We had no jurisdiction to stop people for speeding or broken taillights.

Cyborg
December 8, 2008, 02:29 PM
waterhouse, you sound like one of the cops deaconkharma was talking about when he wrore: to be honest sometimes it gets you more tickets

I know an officer or two who will find things to write you for if you refuse. One used an example of a few "Hotel Mike's" (HM or Hispanic Males) Who refused a search. They got tickets for tread, improperly displayed tag, tag light, and a couple of other things I forgot. I am not advocating refusal, nor compliance... but just know that some police don't take kindly to a "No" and will write you tickets for all kinds of things they can write, tread on your tires if they find the tread too worn etc...

I never wrote a citation in my life. OK. And if the former Border Patrol (now ICE) could have written them are you saying you wouldn't have?

It appears I mistook you for cassandrasdaddy who asked about the bogus citations written by a cop who was refused a "consentual" search is it crooked if the offenses are real? they have discretion as to how/what they write. For that I apologize.

But I will testify under penalty of perjury that nobody EVER told us why our vehicle was searched. Of course back then I had no idea about the definition of probable cause or reasonable vs mere suspicion. I frelling will know it now and nobody is searching me or mine without a warrant. And if they try to say that failure to consent to search constitutes probable cause then I will tell them to go get that warrant and we'll see what a jury says.

Cyborg

waterhouse
December 8, 2008, 02:40 PM
waterhouse, you sound like one of the cops deaconkharma was talking about when he wrore:

Once again, what did I actually write to make you believe this.

OK. And if the former Border Patrol (now ICE) could have written them are you saying you wouldn't have?

When did the Border Patrol become ICE? As of last year, ICE was tasked with interior enforcement. They were involved with things like the Tyson Chicken illegal immigrant workers, and pretty much everything that isn't near the Border. The Border Patrol became part of CPB, Customs and Border Protection. This is more curiosity than anything, as I was unaware of any agencies merging since I left.

To answer your question, I absolutely would not have been happy writing citations. I liked patrolling the border, I hated the paperwork involved in making arrests. I certainly wouldn't volunteer to do any more paperwork than was absolutely necessary.

I frelling will know it now and nobody is searching me or mine without a warrant.

In your class, I presume they went over all of the exceptions to warrant searches. Please keep them all in mind.

waterhouse
December 8, 2008, 02:48 PM
This has all gotten very far off topic from the original post, so I will bow out.

I cannot find any case law stating that the rears of SUVs or station wagons are exempt from plain view doctrine, but my experience was on a Federal level. As Cyborg mentioned, it is safest to keep things you don't want seen well covered.

Steve in PA
December 8, 2008, 03:27 PM
Plain view is just that......anything in plain view. It doesn't matter if it is in the back of a station wagon, etc. If I can see it without moving or opening something, it is in plain view.

TexasRifleman
December 8, 2008, 03:55 PM
No its not, and I wish people would quit perpetuating the myth. The law prohibits weapons on school's premises. If you read further, "premises" is defined narrowly as the school buildings themselves. The exact language from the Texas Penal Code:


To nitpick even more, there are cases where firearms CAN be on school property, even inside the buildings.

on the physical premises of a school or
educational institution, any grounds or building on which an
activity sponsored by a school or educational institution is being
conducted, or a passenger transportation vehicle of a school or
educational institution, whether the school or educational
institution is public or private, unless pursuant to written
regulations or written authorization of the institution;


Written permission to bring firearms onto school property is all you need. It's been done, trust me. I have a letter from a private school authorizing me to carry my concealed weapon into the school building. My kid was a student there at the time.

No offense to the OP but I think I know why he didn't pass the class :)

kurtmax
December 8, 2008, 03:55 PM
I highly suggest not listening to the OP. He is wrong on so many levels.

What you need to know is very, very simple.

Don't talk to the police, except for telling them that you don't consent to searches.

You don't need to know what they can and cannot search, the court and your attorney will sort that out afterwards. Most police know what they can and cannot search and if they know you won't consent they aren't going to do an illegal search. If they do search illegally, so what?

Cyborg
December 8, 2008, 11:17 PM
No offense to the OP but I think I know why he didn't pass the class
You know squat all, sirrah. I am VERY FRAKKING offended by your post. I didn't fail, I fell prey to a former cop who bragged about what today would be actionable under federal abuse of authority statutes. He is famous for getting rid of one student out of EVERY class that goes through. I had a 94% average going into phase III of the BLE course. My only sin was doing some things in an unorthodox manner - to wit I swing a baton off-handed. For TexasRifleman and any other of the linguistically challenged, that means I shoot southpaw but swing a baton with my right hand. I also use the baton less like a club and more like a short sword. Make a comment about THAT, sirrah.

I spoke the truth as I was taught it, no more, no less. An we lived in a civilized country I would be able to call you out and meet you on the dueling sands. But we do not live in a civilized country so I do not have the option of seeking satisfaction. Instead I have to bear the yapping of ignorami.

kurtmax, your ignorance is even worse and more abyssal than the one styling himself TexasRifleman.

DMF
December 11, 2008, 12:46 AM
There is so much bad info on this thread it's ridiculous.

I am not aware of ANY jurisdiction that does not recognize the plain view doctrine, or the Carroll Doctrine. Some jurisdictions are iffy on "plain touch" but plain view is accepted nationwide.

What that means is if a cop can legal be somewhere, and sees something that establishes probable cause, the cop can act on that PC. In the case of an automobile in a public place that PC will mean the cop can conduct a full search of vehicle without a warrant.

The cargo area of an SUV is no different than the passenger compartment. If the object(s) in plain view that would establish PC are in the cargo compartment it makes no difference. Beyond "assuring reasonable officer safety" an LEO may not look through the windows into the interior of you vehicle.

That's considered a "search," and without "probable cause" is barred. Again, where does such nonsense come from? That statement is totally false. An officer can legally walk up to a vehicle, press his nose against the glass, shine his flashlight inside, etc.

http://caselaw.lp.findlaw.com/data/constitution/amendment04/03.html#4

http://caselaw.lp.findlaw.com/data/constitution/amendment04/04.html#4

DMF
December 11, 2008, 12:56 AM
Evidence that is not usable in court IS usable to establish probable cause for a search warrant. Whoever told you this is flat out wrong. The same standard applies. If evidence is obtained in violation of the fourth amendment (or any other part of the Constitution, or in violation of a statute) and used as PC for a warrant the evidence obtained from the warrant will be suppressed under the exclusionary rule.

http://caselaw.lp.findlaw.com/data/constitution/amendment04/06.html#1

DMF
December 11, 2008, 12:59 AM
Even if you don't do any jail time, convicted felons cannot legally own a firearm for 5 years AFTER they have completed all jail, probation, parole time and paid all fines in full.
In general (with some very narrow exceptions) any felony conviction will result in life long prohibition from possessing firearms and ammunition under federal law, specifically 18USC922(g)(1).

DMF
December 11, 2008, 01:09 AM
But when I was in the Basic Law Enforcement class at San Antonio College we were told by a 20+ year veteran that the area behind the last seat is off limits as regards the plain view rule.20 year veteran of what? Because if he was a 20 year vet of LE then he must have been one of the most ignorant cops in the history of modern LE because he's dead wrong about the plain view doctrine.

DMF
December 11, 2008, 01:22 AM
Cyborg, sorry you didn't like your van being searched, but if it was a border search then it was completely legal.

http://caselaw.lp.findlaw.com/data/constitution/amendment04/04.html#2

Any fool can see she isn't Hispanic and since she was with us and spoke unaccented English she self-evidently was not an illegal.You've got to be kidding me with this nonsense. First, "Hispanics" are not the only people who enter this country illegally. 2nd, the ability to speak English without an accent is NOT proof that the individual is in the US legally. I recently arrested a person that spoke unaccented English, but who was an illegal alien. The person was arrested on charges unrelated to alien status, but was determined to be an illegal alien after being booked on the other charges.

DMF
December 11, 2008, 01:28 AM
I frelling will know it now and nobody is searching me or mine without a warrant.As stated above a warrant is not required to search a mobile conveyance. All that's required is PC. See the above citation regarding the mobile conveyance exception to the warrant requirement, also known as the Carroll Doctrine.

Further, other searches that do not require a warrant include, searches incident to arrest, inventory searches, border searches, and certain "frisks."

http://caselaw.lp.findlaw.com/data/constitution/amendment04/03.html#1

Based on your repeated errors about the law on this thread, I think you wasted your time and money on this LE training you claim to have received.

RoostRider
December 11, 2008, 01:38 AM
The only thing clear here is that there are lots of different interpretations of what constitutes "Plain View"...

Not being a lawyer, or a cop, or a judge, or ever having even served on a jury... but being someone who has been in court entirely too many times, and knows how it works (which isn't always 'by the book')...

If the officer thinks it constitutes plain view, he's going to do what he thinks he should do, if the prosecuting attorney agrees you will be prosecuted... that should be enough right there to put a pretty sour taste in your mouth (certainly if you have ever been tried for even the slightest thing)... your talking scads of cash just for the attorney to represent you to point out that there 'may be some interpretation issues' with the law.... if the judge/jury agree, you will be convicted, no matter what the law really says or means... again, lots of cash if you want to 'put up the good fight'...

I would personally err on the side of caution and have anything I don't want everyone else seeing out of sight....

ArfinGreebly
December 11, 2008, 02:27 AM
Yeah, I think this one left the High Road a while back.

Getting kinda personal.

Let's close it.

If you enjoyed reading about "Plain View Rule" here in TheHighRoad.org archive, you'll LOVE our community. Come join TheHighRoad.org today for the full version!