When a cop says "please step out of your vehicle" or "may I search your vehicle?"


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Sgt.Murtaugh
January 12, 2011, 02:31 PM
I know you can always say "no, I dont consent to a search" but what if a cop says to you "sir, please step out of your vehicle?" Can you say "I will not step out of my vehicle" and remain seated, without consequence?

Often times, and it has happened to me, a cop will ask "can I search your vehicle?" or "is there anything I should know about in your vehicle?"

In the past, I have simply said "No, I do not consent to a search of my vehicle, I would like to be on my way" and that response has sufficed. Usually, the cop looks aggravated but has no option but to let me be on my way. I take offense to such a question, especially since I am not carrying anything illegal in my car and I take offense to the fact that a cop would just ask that question without probable cause, but what can you do?

Now, I thought of this the other day - what if a cop asks you to step out of your car? Does stepping out of your car grant him permission to SEARCH your car? Is there any response to this question that will allow you to decline his command and stay within the realm of legality? This is a gray area that I would love some input on. I do keep a Ruger GP100 in my car, and it is legal to do so in the state of TX, but I don't want to tell a cop about my gun unless I have to and I certainly don't want to cause trouble with DPD. I also just want to know my rights.

Thanks

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wishin
January 12, 2011, 02:52 PM
If asked to step out, comply. That does not give LEO's the right to search your car. If they ask, politely refuse a search. Some here will suggest you lock the doors as you step out.

TexasRifleman
January 12, 2011, 02:59 PM
I know you can always say "no, I dont consent to a search" but what if a cop says to you "sir, please step out of your vehicle?" Can you say "I will not step out of my vehicle" and remain seated, without consequence?

No, you can't really refuse that. What most recommend you do is comply, get out of the car taking your keys with you and lock the door behind you. If the LEO asks why you locked the door just say "habit" and shut up.

At that point he will have to demand, or take, the keys from you to conduct a search. With the advent of so many dash cams it will be very difficult for him to prove you consented to a search.

That all assumes he doesn't have probable cause to search anyway. Keep in mind that things visible through the windows might give him PC.

Sgt.Murtaugh
January 12, 2011, 02:59 PM
When I was young and stupid, I let a cop search my car, even though I had nothing incriminating in it. He TORE the thing apart, and left all my possessions that were in the car, lying on the side of the road. He then drove off. I simply do not want a repeat experience. Damn TX state trooper!

Guillermo
January 12, 2011, 03:01 PM
a policeman has the right to separate you from the vehicle for his safety.

you have the right to lock it

Sam1911
January 12, 2011, 03:02 PM
We happen to have discussed this recently in several threads.

You do have to obey a lawful order, which instruction to step out of the car would appear to be. Absent any reasonable suspicion that a crime has been committed, the officer must limit his search to a search of the immediate area, and is only allowed to search for items which might compromise his safety.

One way to counter that is to lock and close the door as you exit the vehicle. At that point, the interior of the car is not accessible to you (or him) and is no longer the "immediate area." Ergo, nothing in that car represents an immediate threat to his safety. He may frisk you for weapons -- but only for weapons. Anything else (illegal) he finds may be confiscated, but may not be used to incriminate you in court.

He cannot -- short of having probable cause (for example, a concrete and reasonable belief that you've committed a crime) -- open your locked vehicle and search it.

Now, he may make any number of claims later (I smelled pot, etc.) and if he chooses to go ahead with a search you cannot legally try to stop him. However you should document the incident and make the best preparation you can for fighting it and protesting it afterward.

Remember: neither your NRA sticker, your Guns&Ammo magazine on the seat of the car, nor your statement that you do not consent to searches constitute ANY reasonable suspicion that you've committed a crime.

NavyLCDR
January 12, 2011, 03:03 PM
The general rule established by the US Supreme Court in several cases is that during a lawful Terry Stop made under legitimate puporses, if the officer has reasonable suspicion to believe that you are armed and dangerous, the officer has the right to frisk you for weapons AND to frisk the area of a vehicle that is readily accessible from which a weapon may be obtained. The limit of the scope of both these searches is for weapons only and these searches may be conducted without the consent of the subject.

If you exit your vehicle and lock the doors behind you, you have just now made the interior of your vehicle inaccessible from which to obtain weapons and it was seem to me that would eliminate the ability of the officer to search the vehicle without consent.

Grant v. Arizona

http://www.nowpublic.com/world/arizona-v-grant-held-supreme-court-4th-amendment-ri

If the officer can articulate reasonable suspicion that you are armed and dangerous, and he/she asks you to step out of the vehicle and you fail to comply, the officer would be within their rights to remove you from the vehicle for the purpose of a frisk.

The Supreme Court has never separated being armed from being dangerous, during a legimate Terry Stop or traffic stop. Federal courts have separated being armed and being dangerous in cases where the stop was due to a lawfully carried firearm only, though, which does not establish RAS for a Terry Stop: St. John v. Alamagordo (New Mexico).

Erik
January 12, 2011, 04:05 PM
Proximity to a locked vehicle does not, in fact, equate to an inability to immediately access it.

I do it all the time.

And from there, much of the assumptions concerning what a LEO may or may not be authorized to do begin to unravel.

henschman
January 12, 2011, 04:11 PM
No, stepping out of a car after being told to do so by a policeman does not constitute consent, whether it was a lawful order or not. The courts recognize that an order from a cop, whether lawful or not, has an a certain element of coersion to it. The supreme court has held that it is not reasonable to require citizens to refuse, resist, or object to an unlawful order by a cop in order to "invoke" their 4A rights.

If a cop proceeds to try to search your car after he tells you to get out, just remind him that you do not consent to a search. This should clear things up if he is under the mistaken belief that you consented. Consent for a search can be revoked at any time. If he persists in the search, the smartest thing generally is to go along with it, and afterwards, talk to a lawyer about the situation.

Erik
January 12, 2011, 04:17 PM
AZ v. Gant addresses the search of a vehicle subsequent to the arrest of an occupant. It does not address Terry Frisks of the vehicle. These are not the same things.

Oyeboten
January 12, 2011, 04:30 PM
So...an Officer who has no reasonable suspicion of any probable cause to search a Car, but is in the mood for a fishing expedition, can ask the Car's driver if he may search the vehicle, and, when the person says "No", the Officer then has his probable cause, because the person refused?

Erik
January 12, 2011, 04:33 PM
Basically:

Prior to AZ v Gant law enforcement, upon developing probable cause to arrest someone, could arrest that person and search without a warrant the vehicle for evidence of any crime.

AZ v Gant imposed a two-pronged rule on warrantless vehicle searches subsequent to arrest:

Police may search a vehicle incident to a recent occupant’s arrest (1) only if the arrestee is within reaching distance of the passenger compartment at the time of the search or (2) it is reasonable to believe the vehicle contains evidence of the offense of arrest.

More here: http://www.law.cornell.edu/supct/html/07-542.ZO.html

--

It all sprang from Terry v. Ohio: http://www.law.cornell.edu/supct/html/historics/USSC_CR_0392_0001_ZS.html

Terry Stops and Terry Frisks are not the same thing.

A Terry Stop requires reasonable suspicion that crime is afoot. Or in this case, awheel. More here: www.fletc.gov/training/programs/legal.../terrystopupdate.../download

A Terry Frisk, to include the lunging areas of the vehicle someone recently inhabited, requires reasonable suspicion that a person encountered during a Terry Stop is armed and dangerous. More here: www.fletc.gov/training/programs/legal.../terryfriskupdate.../download

henschman
January 12, 2011, 04:38 PM
Samuel, the cases that allow for a search of the interior compartment of a vehicle upon reas. suspicion are extensions of the rule from Terry v. OH, and are conducted for the same reason. These searches are for the purpose of discovering dangerous weapons. To lawfully perform one of these searches, an officer must have reasonable suspicion, based on specific and articulable facts, that the suspect is both armed and dangerous. Obviously, like with any objective standard, there is some question as to what constitutes reasonable suspicion... but you are definitely wrong when you say that a mere refusal to consent to a search could constitute reasonable suspicion. The officer must be able to articulate some specific facts that led him to believe that 1) the suspect was armed, and 2) the suspect was dangerous, in order to justify a Terry-type search. A simple "gut feel" or the fact that the suspect came across as "nervous" do not meet this standard.

henschman
January 12, 2011, 04:52 PM
I should add that you are legally within your rights to resist unlawful force being initiated against you by a police officer, just like you are with any other person. Legally, you may use reasonable force to defend yourself against unlawful force, like in any other situation, including deadly force if you are threatened with death or serious bodily injury.

However, there are several reasons why it is generally smarter to wait until after the fact to fight such a violation. For one thing, you may not be thinking clearly and may not know the legal standards involved, and you might mistakenly use force unlawfully. For another thing, you obviously may be hurt or killed if you resist. For another, and this is the biggest reason IMO... the average juror in this country is easily impressed with things like badges, uniforms, and official titles, and puts an extremely high amount of trust in anyone who is in the field of law enforcement. Even if your story is true, there is a very high likelihood that you will be convicted of a crime anyway, just because of who the alleged victim is/was. If you kill a policeman in self defense, be prepared to either suffer the harshest possible sentence for Murder 1 in your jurisdiciton, or to live the rest of your life on the lam.

Erik
January 12, 2011, 04:53 PM
Cite a/the precedent(s) equating refusing a request to waive your 4A right to unreasonable search and seizure with probable cause to obtain a warrant, please.

Erik
January 12, 2011, 04:56 PM
I disagree with most of your assertions, and in lieu of typing a resume snapshot, have provided links for readers to review.

NavyLCDR
January 12, 2011, 05:04 PM
However, if you are pulled over for a valid reason, and the officer asks to search your car and you refuse, then yes, that alone is enough to warrant the required "probable cause", and there is a volume of precedent to support it.

After 15 years of being an Assistant District Attorney, 10 years in criminal defense, and litigating over 300 criminal cases, I'd say I know the case law and precedent well, and understand how it actually plays out in a courtroom.

Then, it seems to me, that it would be extremely easy for you to present to us this precedent and case law that you speak of. Yet we have yet to see it from you.

Samuel79, maybe you would like to discuss United States v. Hunnicutt as precedent?

http://scholar.google.com/scholar_case?case=15932937010237706011&q=135+F.3d+1345&hl=en&as_sdt=1002

Mr. Hunnicutt's assertion is not without evidentiary basis. Officer Raines explicitly testified that the refusal to consent persuaded him Mr. Hunnicutt "had something to hide." III R. at 30. Although ample other factors supporting reasonable suspicion were present here, as well as alternative justifications for all searching and further detention, we emphasize that refusal to consent should not have been considered in determining reasonable suspicion. See Florida v. Bostick, 501 U.S. 429, 437, 111 S.Ct. 2382, 2387-88, 115 L.Ed.2d 389 (1991); Royer, 460 U.S. at 498, 103 S.Ct. at 1324; Brown v. Texas, 443 U.S. 47, 51-52, 99 S.Ct. 1351*1351 2637, 2640-41, 61 L.Ed.2d 357 (1979); United States v. Manuel, 992 F.2d 272, 274 (10th Cir.1993). Any other rule would make a mockery of the reasonable suspicion and probable cause requirements, as well as the consent doctrine. These legal principles would be considerably less effective if citizens' insistence that searches and seizures be conducted in conformity with constitutional norms could create the suspicion or cause that renders their consent unnecessary.

And, Mr. Samuel79, you will kindly notice that in this case, there was plenty of OTHER reasonable suspicion and probable cause of a crime being committed, however, the US Supreme Court states that exercising one's 4th Amendment rights to refuse a search does NOT in any way, shape or form contribute to that reasonable suspicion or probable cause.

I would think, after "15 years of being an Assistant District Attorney, 10 years in criminal defense, and litigating over 300 criminal cases" you would be aware of United States v. Hunnicutt.

KodiakBeer
January 12, 2011, 05:16 PM
However, if you are pulled over for a valid reason, and the officer asks to search your car and you refuse, then yes, that alone is enough to warrant the required "probable cause", and there is a volume of precedent to support it.

If you think being pulled over for a traffic stop and refusing a search constitutes "probable cause" then I hope to God I never have the misfortune of driving through whatever little corner of the USSR you're affiliated with.

DaisyCutter
January 12, 2011, 05:17 PM
The LEO is allowed to ask.

You can say no.

Many LEOs only ask as a courtesy, because they've already seen the beer behind the seat or the marijuana seeds on the floorboard... and the car is getting searched regardless of your answer. In fact, even people who've consented can recant and say they were under duress when they consented, because they reasonably believed they were detained (not free to leave). Many LEOs are only asking to see the drivers reaction.


Exiting your car doesn't not equate consent to search.


A search subsequent to arrest can include any area within the lunge or "wingspan" area of the driver.


The locking of the door after exit in a new one for me. I've never seen anyone try it. To most LEO, the keys represent the actual control for the car, and they'll get the keys first, then ask you to exit. After a LEO has a couple drivers fight him, drive off, drag him, etc... he learns to get the keys as soon as there is a sign of criminal activity.

Most of that has been discussed already.

---------------------------------------------------------------------


This hasn't been addressed.


While the LEO can't search your whole car subsequent to arrest, he most likely will still have to coordinate removing it from the scene, which requires a thorough inventory of everything in the vehicle.

Vehicle search A.K.A. tow inventory.


----------------------------------------------------------------------


Use your best judgment whenever anyone boasts about their vehicle's gas mileage, how much money they won in Vegas, and how often they outsmart the police.


A better bet is to not have contraband in your car.

NavyLCDR
January 12, 2011, 05:18 PM
Really, there is a very simple answer regarding a frisk and/or search. If the cop is asking for your consent, he doesn't have enough RAS or PC to conduct the search without it. If he did, he wouldn't be asking you for your consent to begin with.

Samuel79,
Instead of spewing more B.S., why don't you address United States v. Hunnicutt?

TexasRifleman
January 12, 2011, 05:19 PM
The locking of the door after exit in a new one for me. I've never seen anyone try it.

The ACLU has been recommending that one for many years now.

highorder
January 12, 2011, 05:24 PM
However, if you are pulled over for a valid reason, and the officer asks to search your car and you refuse, then yes, that alone is enough to warrant the required "probable cause", and there is a volume of precedent to support it.

I am not a lawyer, but that goes against everything I thought I understood about Probable Cause.

henschman
January 12, 2011, 05:29 PM
Samuel, you are confusing the requirements of a Terry stop with the requirements of a Terry frisk. Both situations involve the legal standard of "reasonable suspicion," but they require reasonable suspicion about different things.

For a "Terry stop," a policeman must at least have reasonable suspicion that criminal activity is being committed or is about to be committed, and the officer is limited purely to stopping the suspect for the limited purpose of investigating the crime for which there was reasonable suspicion. This does not extend to any further searches... just a limited seizure of the suspect during which time the officer can ask questions designed to affirm or dispel his suspicion.

For a "Terry frisk" of the suspect's person or the suspect's car, the officer must have Reasonable Suspicion, based on specific and articulable facts, that the suspect is armed and dangerous... not merely reasonable suspicion that a crime is being committed or is about to be committed, as is required for a stop.

Obviously one can lead to another, as it did in the original Terry v. OH case... a cop saw a guy in a long bulky coat with a bulge loitering around a store in a high-crime area. This gave the cop a reasonable suspicion that a robbery was about to be committed. The officer approached the man and asked him what he was doing and what he had under the coat. The man acted very nervously and did not offer an answer to dispel the reasonable suspicion. At this point, the officer had reasonable suspicion that the man was armed and dangerous, and patted him down, feeling that he had a gun hidden under his coat, which the officer was allowed to seize and secure.

Now with a simple traffic stop, say for a busted taillight, the cop just has a reasonable suspicion (and probably outright probable cause as well) that the driver has violated the taillight law. He has the authority to stop the driver for the purpose of investigating this crime and writing a ticket for it. If he asks for a search and the driver refuses, he cannot search under the Terry line of cases unless something about the situation or the driver's responses to his questions give him a reasonable suspicion that the driver is armed and dangerous.

If an officer really wanted to search the car, the right way would be to place the driver under arrest for the taillight violation and take him downtown, and then perform a search incident to arrest and/or a custodial search of the car. However, police rarely go to the trouble of placing people under full-blown arrest for minor traffic offenses, and many departments have policies against it.

If they really want to get a search that has a chance of standing up to judicial scrutiny, they usually go with the motor vehicle exigency exception to the warrant requirement, which just requires probable cause that evidence of a crime is in the vehicle. The scope of this search extends to anywhere that the cop has probable cause of evidence being located. The most common way to get this type of search is for the cop to pretend that he detects the odor of an illegal drug, usually marijuana. Since marijuana can be hidden just about anywhere in a car, a cop can then basically search anywhere in the car. Then with the plain view doctrine, he can seize any contraband that he finds, even if it is not related to the initial reason for the search.

TexasRifleman
January 12, 2011, 05:34 PM
Deleted a couple of posts. Let's try to keep on the topic directly please.

henschman
January 12, 2011, 05:37 PM
Not that I think you have to be a lawyer to discuss this subject authoritatively, but yes I am a lawyer... a pretty new one, too, so the requirements for all these various different types of searches are pretty clear in my memory from Bar Bri last summer!

Don't take it personally, I'm not breaking your balls... but you know what they say... the most you are ever going to know about the law right before you take the bar exam! From there it starts to get fuzzy, except for the areas you end up practicing in!

TexasRifleman
January 12, 2011, 05:38 PM
Correct me if I am wrong but isn't there an exception if you are within 25 miles of the border?

Seems I recall that the PC requirement was out the window close to the border. Am I remembering that right?

swinokur
January 12, 2011, 05:50 PM
This thread is one of the reasons I carry a small digital recorder when I go out and especially when I carry. It can record 96 hours of audio at the lowest quality which is good enough for voice only. I turn it on when I go out and erase it when I get home. It has a USB port to move files to your PC.

Don't leave home without one.

DaisyCutter
January 12, 2011, 05:53 PM
The BORDER PATROL / ICE is doing checkpoints along the roadways. They cite its reasonable within ## miles of the border. I consider is unconstitutional.

DUI checkpoints should also be unconstitutional.

Untaxed fuel, AKA "red diesel" checkpoints should also be unconstitutional.



To pull over a vehicle ONLY because it's a diesel, with no other suspicion that it may be running on untaxed fuel.... that's bogus.





FWIW:

Really, there is a very simple answer regarding a frisk and/or search. If the cop is asking for your consent, he doesn't have enough RAS or PC to conduct the search without it. If he did, he wouldn't be asking you for your consent to begin with.

I don't know everything, but I would contend the exact opposite.

Why would an officer even ask, lacking the necessary level of suspicion?
He's kinda setting himself up for disappointment when the driver says no. If he does find something, it'll be a weak case from the start. People's cars are nasty, and bending over in the heat/cold/dark, with all that gear on, traffic flying by inches from your butt, taking your eyes off the driver, and reaching for that dirty diaper under the seat isn't fun... heck it's an outright safety compromise.

Do you think most officers are doing vehicle searches on a lark?


I'm just saying...

Some cops might prefer to observe the rolling papers in the driver's wallet when he opens it to reach for his ID, and then see the marijuana seeds that got shaken onto the floorboard. That cop should still ask for consent, it's nice to be polite. How the driver responds tells you right away if he's honest, dishonest, submissive or combative. That information is FAR more valuable to the officer than a dime-bag. That's why cops ask. They are judging the driver's reaction (should I call for another unit to assist me?).

The data oriented world we live in provides the officer with a lot of information. Assume he knows... a lot. Sometimes the officer even knows answers to the questions he's asking the driver.

"Where ya headed sir?"

Home.

Where is that sir?


Do you really think he doesn't already know where you live?
The officer is just doing an integrity check.

DaisyCutter
January 12, 2011, 05:58 PM
This thread is one of the reasons I carry a small digital recorder when I go out and especially when I carry. It can record 96 hours of audio at the lowest quality which is good enough for voice only. I turn it on when I go out and erase it when I get home. It has a USB port to move files to your PC.

Don't leave home without one.


Very sound advice.


I use one also. Most LEOs carry these. From a LEOs perspective, it gets used to exonerate them more than it gets used to incarcerate others.

Also comes in handy for countless civil disputes... that repairman who promised you a $500 repair and then gouges you $1000. Hearing his own words can change his tune fast.

NavyLCDR
January 12, 2011, 06:06 PM
Some cops might prefer to observe the rolling papers in the driver's wallet when he opens it to reach for his ID, and then see the marijuana seeds that got shaken onto the floorboard. That cop should still ask for consent, it's nice to be polite. How the driver responds tells you right away if he's honest, dishonest, submissive or combative. That information is FAR more valuable to the officer than a dime-bag. That's why cops ask. They are judging the driver's reaction (should I call for another unit to assist me?).

Did you read United States v. Hunnicutt above?


How the driver responds tells you right away if he's honest, dishonest, submissive or combative.

How about this one. I took an oath to support and defend the Constitution of the United States against all enemies foriegn and domestic. I am an officer in the US Navy with service to this country for 27 years, so far (enlisted before becoming an officer). I value the Constitution and the protection of ALL rights that it affords and I will NEVER waive those rights to a police officer, which means I will NEVER give consent to any search. If that is viewed as being dishonest or combative, then so be it.

Why would an officer even ask, lacking the necessary level of suspicion?

Actually, I will say this. A smart cop will ask for a consent to search whether he has probable cause/reasonable suspicion or not and there is a simple reason for that. IF he obtains consent prior to the search, then ANYTHING the cop finds during the search can be used as evidence, whether the search was related to the probable cause/reasonable suspicion or not. Obtaining consent to the search completely throws out any defense of unreasonable search and seizure because a search that is consented to is impossible to be unreasonable, IF the consent was given freely, without coercion.

The reason WHY an officer is requesting for consent to search, though, is pretty much immaterial. NEVER, EVER consent to a search! Just because you have nothing to hide is NO guarantee that they won't find something anyway.

NavyLCDR
January 12, 2011, 06:09 PM
And the offer for Samuel79 to explain to us United States v. Hunnicutt quoted above still stands - how does refusal to consent to a search give rise to or contribute to reasonable suspicion or probable cause?

Shadow 7D
January 12, 2011, 06:21 PM
Sorry, it seems half the post on this thread are BRB????
I have seen here, and will continue to listen to the advice of those who present more than just opinion.
BTW, isn't a number of legal precedents where the refusal of search was specifically thrown out as a factor of PC?

TexasRifleman
January 12, 2011, 06:28 PM
Sorry, it seems half the post on this thread are BRB????

Seems someone decided to remove their comments from this thread, cleaned up now.

wishin
January 12, 2011, 06:46 PM
The reason WHY an officer is requesting for consent to search, though, is pretty much immaterial. NEVER, EVER consent to a search! Just because you have nothing to hide is NO guarantee that they won't find something anyway.

It wouldn't be the first time a joint or empty beer bottle was found under/between the seats of dad's car.....

DT Guy
January 12, 2011, 06:54 PM
Proximity to a locked vehicle does not, in fact, equate to an inability to immediately access it.

I do it all the time.

And from there, much of the assumptions concerning what a LEO may or may not be authorized to do begin to unravel.

I'd imagine that trying to convince a judge that you're going to extend your Terry stop to a locked vehicle the subject is no longer in will be an uphill fight, though?


Larry

FuzzyBunny
January 12, 2011, 07:17 PM
However, if you are pulled over for a valid reason, and the officer asks to search your car and you refuse, then yes, that alone is enough to warrant the required "probable cause", and there is a volume of precedent to support it

If he as "probable cause" to search then why would he ask permission?
Under the assumption you just have a broken tail light.

NavyLCDR
January 12, 2011, 07:19 PM
I'd imagine that trying to convince a judge that you're going to extend your Terry stop to a locked vehicle the subject is no longer in will be an uphill fight, though?


Larry

Especially since the officer should have already frisked you, and unless they are going to break into the car to conduct the search, they would have to obtain the keys from you. Seems like once they obtain the keys from you, "immediate accessibility" kind of goes out the window...

henschman
January 12, 2011, 07:21 PM
TexasRifleman, the PC requirement is thrown out the window for "routine border searches" at border checkpoints or their functional equivalent (e.g., airport terminals where people arrive from other countries). Travelers can be detained for a brief search of their persons and belongings (including their vehicle).

In the area near, but not at a border, there is a difference between "roving" border patrols and fixed checkpoints. Roving border patrols are subject to the same rules as any other cop. However, officers at fixed checkpoints in the "border zone" are allowed to stop people and briefly detain them for questioning, but cannot subject them to a search without the usual legal justifications.

LKB3rd
January 12, 2011, 07:27 PM
So...an Officer who has no reasonable suspicion of any probable cause to search a Car, but is in the mood for a fishing expedition, can ask the Car's driver if he may search the vehicle, and, when the person says "No", the Officer then has his probable cause, because the person refused?
No.
I have seen that asserted lately, but it is not correct.

mljdeckard
January 12, 2011, 07:47 PM
Many cops are either taught the law incorrectly or interpret it incorrectly. Many cops use incorrect procedures. Many of them get away with it more often than not. Usually against defendants who lack either the resolve or the savvy to stand up to them.

None of this makes incorrect/illegal procedures acceptable. To allow bad practices and cops to get into bad habits does everyone a disservice. Especially when a cop gets in trouble after many years of service, because no one told him he was doing anything wrong. (More likely, he knew it was wrong all along, but listened to other cops who told him not to worry about it.)

Assertion of your rights indicates neither reasonable suspicion nor probable cause of a crime.

I'm not a lawyer yet, but my professors are. I trust them to know what the heck they are talking about.

DaisyCutter
January 12, 2011, 08:10 PM
Did you read United States v. Hunnicutt above?


Where on Earth did I imply that refusal to consent would imply guilt?

If I see drugs on the floorboard, then I don't need consent. I still ask. The driver's answer indicates to me whether he might be willing to fight or run, and whether I need to wait for a second unit to arrive on scene to watch him while I expose myself digging inside the car.

If I don't have enough evidence to merit a search, then I don't bother asking.

How about this one. I took an oath to support and defend the Constitution of the United States against all enemies foriegn and domestic. I am an officer in the US Navy with service to this country for 27 years, so far (enlisted before becoming an officer). I value the Constitution and the protection of ALL rights that it affords and I will NEVER waive those rights to a police officer, which means I will NEVER give consent to any search. If that is viewed as being dishonest or combative, then so be it.

I took a similar oath. I appreciate your service and your speech. If an officer pulls you over with an open bottle of Wild Turkey, then whether or not you "consent" to a search is immaterial. I'm asking because I want to find out whether you're a happy drunk or a combative drunk.

There is no wrong answer, and whatever answer you provide won't change my course of action or the nature of any applicable charges.

I'd just prefer not to get bloody.


Actually, I will say this. A smart cop will ask for a consent to search whether he has probable cause/reasonable suspicion or not and there is a simple reason for that. IF he obtains consent prior to the search, then ANYTHING the cop finds during the search can be used as evidence, whether the search was related to the probable cause/reasonable suspicion or not. Obtaining consent to the search completely throws out any defense of unreasonable search and seizure because a search that is consented to is impossible to be unreasonable, IF the consent was given freely, without coercion.

The reason WHY an officer is requesting for consent to search, though, is pretty much immaterial. NEVER, EVER consent to a search! Just because you have nothing to hide is NO guarantee that they won't find something anyway.


Negative Ghostrider.

A smart cop knows that the only time a consent search is even valid is after he gives the driver all his license/reg/ins papers back, tells him he's free to leave, AND ONLY THEN ASK TO SEARCH.

Otherwise the defense will argue that the driver felt he was not free to go and was intimidated into consenting, and that argument will stand up.

That's the freshest case law reference consent searches.

In fact, county attorneys are telling the police to turn around and walk away a couple steps, before returning and asking, just so it can be argued the driver was in-fact free to leave when he consented.


It's become so much of a PITA, that a smart cop just realizes it's easier to wait until he's got ample evidence to justify a search... and then ask.


I won't argue it's wise to decline a search.


I won't ever consent to a search. Though I AM going to be very careful to verbalize my opposition in a way that does not escalate the situation.


Perhaps you live in a really clean area, and the police use consent searches to get lucky... well, then I guess it wouldn't be a clean area.

Anyway, if a cop can pull over a car and get dope and a warrant at will, then why is he going to be farting around on a long shot like you anyway?

There's never a lack of genuine bad guys.

4thPointOfContact
January 12, 2011, 08:28 PM
Originally Posted by Samuel79
However, if you are pulled over for a valid reason, and the officer asks to search your car and you refuse, then yes, that alone is enough to warrant the required "probable cause", and there is a volume of precedent to support it.

If there is indeed a volume of precedent to support your claim, maybe you could cite a few.... or one?

[Edit] As Samuel79 seems to have removed the post wherein he made the statement, I guess we can take that as tacit agreement that he wishes to retract the claim.

Shadow 7D
January 12, 2011, 08:31 PM
Actually, the part I don't like is the mess, simply put, I have enough of a problem keeping the car clean, I don't need somebody else trashing it, and when they start 'dismantling' thats the part where the cell phone comes out, and the insurance company gets a call.

Seems to me, it's easier to get the car fixed if you didn't say it's ok to search in the first place.

NavyLCDR
January 12, 2011, 08:52 PM
A smart cop knows that the only time a consent search is even valid is after he gives the driver all his license/reg/ins papers back, tells him he's free to leave, AND ONLY THEN ASK TO SEARCH.

Otherwise the defense will argue that the driver felt he was not free to go and was intimidated into consenting, and that argument will stand up.

Yes, that's true...

I'm sorry, I may have read more into your posts than was actually there. I was kinda spun up at the time by Samuel79's nonsense.

avs11054
January 12, 2011, 09:01 PM
We happen to have discussed this recently in several threads.

You do have to obey a lawful order, which instruction to step out of the car would appear to be. Absent any reasonable suspicion that a crime has been committed, the officer must limit his search to a search of the immediate area, and is only allowed to search for items which might compromise his safety.

One way to counter that is to lock and close the door as you exit the vehicle. At that point, the interior of the car is not accessible to you (or him) and is no longer the "immediate area." Ergo, nothing in that car represents an immediate threat to his safety. He may frisk you for weapons -- but only for weapons. Anything else (illegal) he finds may be confiscated, but may not be used to incriminate you in court.

He cannot -- short of having probable cause (for example, a concrete and reasonable belief that you've committed a crime) -- open your locked vehicle and search it.

Now, he may make any number of claims later (I smelled pot, etc.) and if he chooses to go ahead with a search you cannot legally try to stop him. However you should document the incident and make the best preparation you can for fighting it and protesting it afterward.

Remember: neither your NRA sticker, your Guns&Ammo magazine on the seat of the car, nor your statement that you do not consent to searches constitute ANY reasonable suspicion that you've committed a crime.
Not exactly...If a person is sitting on the curb while the officer goes back to his car to run the person, the person still has access to the car. The person would be much closer to the car than the officer, and still is able to unlock the car to get into it. Even if the person gave the keys to the officer, the officer has no way to know if the person has another set of keys. However, the officer still needs an original reason as to why he feels his safety could be in jeapordy.

Also, when frisking for weapons, weather it be in the car or on someone's person, any other contraband found can be used against the individual, and the person can be arrested for it. This is based on Minnesota Vs Dickerson in which a Dickerson was frisked for weapons. The officer felt a lump in Dickerson's jacket, which the officer was able to articulate was a bag of drugs, and Dickerson was arrested. The supreme court ruled the officer did not have a reason to frisk the subject, however, if the frist had been lawful, if the officer can articulate that while they are frisking a subject for weapons, and they find contraband, the subject can be arrested.

Keep in mind, just because you do not know what the reasonable suspicion or probable cause is for an officer frisking or searching your car, does not mean the officer does not have it. For example, I am a white male in my 20s. I drive a gray Nissan pick up truck. Say I am wearing a white shirt and jeans. A bank gets robbed at gun point, and the suspect is a white male in his 20s wearing a white shirt and jeans. He leaves in a gray nissan pick up truck. Even if I have nothing to do with the robbery, and officer that sees me driving around the area of the robbery can stop me. Because a robbery is a violent offense, the officer can articulate that his safety could be in jeapordy, and therefore, he can frisk me and the car for weapons. Locking the doors to the car after I get out and refusing to open it for him could be considered interfering with the investigation, or refusing to comply with a lawful order, both of which are arrestable offenses.

Another example is say you are going to the gym or to a friends house, and you will only be gone a short time, so you forget to take any form of ID. I'm not sure about in other states, but in AZ, driving a car without ID is a crime, which you can be arrested for. If you get pulled over, the officer can arrest you. Arizona Vs Gant says the officer can search your car for evidence of the crime you committed, which is failure to provide ID. The officer can search your car for ID, and any contraband found can be used against you.

Bottom line, you do not have to consent to a search of you vehicle, but there are so many different laws and rules that police officers can use to get into your vehicle, that they probably don't need consent.

With regards to the OP, my advice would be exit the vehicle, but don't consent to a search. Your refusal of consent alone does not give the officer consent to search. Just know, the officer could already have all the reasonable suspicion or probable cause he needs to get into your car, so don't try to resist or refuse if he goes ahead with his search. If your constitutional rights have been violated, you can always sue.

Sebastian the Ibis
January 12, 2011, 09:04 PM
Yes a cop can ask you out of the car. Think of a felony traffic stop where the cop prones you out at gun point. Your choices are get out, get shot, or have all the windows in your car smashed out and you go to jail.

If the cop asks you questions, usually your best option is 1) to say nothing, 2) if the cop asks questions or makes requests say "am I under arrest or am I free to go."

There are numerous threads out there:

http://www.thehighroad.org/showthread.php?t=376902

There is also a great video done by the NAACP I think.

Erik
January 12, 2011, 09:07 PM
"I'd imagine that trying to convince a judge that you're going to extend your Terry stop to a locked vehicle the subject is no longer in will be an uphill fight, though?"

Perhaps, but it is not as black and white as some would have it be.

Guns and more
January 12, 2011, 09:07 PM
if a cop says to you "sir, please step out of your vehicle?"
My former neighbor, with lots of awards for "policeman of the year" always bragged about pulling women out of cars by their hair, through the window, if they did not move fast enough to suit him.
So, no, I would not recommend refusing to get out of the car.
Today, it might get you tasered.

FlyinBryan
January 12, 2011, 09:15 PM
Samuel79,
Instead of spewing more B.S., why don't you address United States v. Hunnicutt?

am i missing something here? are you quoting from another thread?

FlyinBryan
January 12, 2011, 09:22 PM
how does refusal to consent to a search give rise to or contribute to reasonable suspicion or probable cause?

i suppose a fella with a car that contains something that will get him in trouble might say he didnt want them to look inside because of it.

i didnt get to see what samuel said because it was removed (for being off topic, or incorrect?) so quite a bit of this thread doesnt make sense anymore.

off to look around elsewhere

Hunt480
January 12, 2011, 09:29 PM
Im always respectful and say "yes sir & no sir" and everything seems to work out and I'm on my way but I would probably say no sir to a search even though I got nothing to hide. No offense to anybody here but there are probably some cops that will find what they want if they want you bad enough. Sorta like pulling you over for that tail light that seems to be working fine now or that that obscured tag thats been in the same place 20 years or the classic I saw you weave across the centerline a ways back.

NavyLCDR
January 12, 2011, 09:30 PM
am i missing something here? are you quoting from another thread?

Yes, you are missing a lot. Samuel79 ran away and he deleted all his B.S. posts.

avs11054
January 12, 2011, 09:33 PM
Another thing from reading this thread, I ask for consent for whether I need it or not. As someone stated above, if for some reason some of my evidence would have been found unlawfully, but I was granted consent, the evidence won't be suppressed. If I have no PC, I still ask for consent to search the car. There are plenty of people who either think you'll do a half <deleted> search of their person or their vehicle and you won't find whatever illegal item they might have in their possession.

There are people (judges) who may contend that the mere presence of a badge and gun cause the consent to be coerced, however, that's not for me to decide. If I politely ask someone to search their person or vehicle, and they say yes, that is consent. There are ways to articulate that it was not coerced.

NavyLCDR
January 12, 2011, 09:39 PM
Also, when frisking for weapons, weather it be in the car or on someone's person, any other contraband found can be used against the individual, and the person can be arrested for it. This is based on Minnesota Vs Dickerson in which a Dickerson was frisked for weapons. The officer felt a lump in Dickerson's jacket, which the officer was able to articulate was a bag of drugs, and Dickerson was arrested. The supreme court ruled the officer did not have a reason to frisk the subject, however, if the frist had been lawful, if the officer can articulate that while they are frisking a subject for weapons, and they find contraband, the subject can be arrested.

I would suggest you read Minnesota v. Dickerson again:

http://scholar.google.com/scholar_case?case=7218526854673273191&q=minnesota+v.+dickerson&hl=en&as_sdt=2,48&as_vis=1

Before trial, respondent moved to suppress the cocaine. The trial court first concluded that the officers were justified under Terry v. Ohio, 392 U. S. 1 (1968), in stopping respondent to investigate whether he might be engaged in criminal activity. The court further found that the officers were justified in frisking respondent to ensure that he was not carrying a weapon.

On appeal, the Minnesota Court of Appeals reversed. The court agreed with the trial court that the investigative stop and protective patdown search of respondent were lawful under Terry because the officers had a reasonable belief based on specific and articulable facts that respondent was engaged in criminal behavior and that he might be armed and dangerous.

The Minnesota Supreme Court affirmed. Like the Court of Appeals, the State Supreme Court held that both the stop and the frisk of respondent were valid under Terry, but found the seizure of the cocaine to be unconstitutional.

It remains to apply these principles to the facts of this case. Respondent has not challenged the finding made by the trial court and affirmed by both the Court of Appeals and the State Supreme Court that the police were justified under Terry in stopping him and frisking him for weapons.

It is expressed over and over again in Minnesota v. Dickerson that the stop and the frisk were justified and lawful. Please show us where that is not the case?

TexasRifleman
January 12, 2011, 09:42 PM
am i missing something here? are you quoting from another thread?

No, we had several posts from one member who decided to delete all his comments.

Makes things sort of confusing. No big deal.

Finprof
January 12, 2011, 10:38 PM
A lawyer told me always to ask "Am I free to leave". If the answer is "No" then I am in custody and must be read my rights and have a right to an attorney. Then I pay my attorney some money to take care of the problem.

Is there any truth to this?

avs11054
January 12, 2011, 10:38 PM
navyLT,

it was all good til it got to the us supreme court. That is where it was ruled IN THIS CASE the original patdown was unlawful. In the future, however, an officer can do a pat down for weapons if RS exists, and any other contraband recognized can be used against the defendant. This is what's known as 'the plain feel doctrine.'

I'm not as technically advanced as you or I'd post post excerts like you did. But it appear your excerts are the opinions of the minnesota court of appeals. It was tweaked a little bit when it reached the us supreme court.

avs11054
January 12, 2011, 10:43 PM
A lawyer told me always to ask "Am I free to leave". If the answer is "No" then I am in custody and must be read my rights and have a right to an attorney. Then I pay my attorney some money to take care of the problem.

Is there any truth to this?
just because you are not 'free to leave' does not mean you are in custody and must be read your rights. You only have to be read your rights if you are not free to leave he police officer is going to ask you questions about a crime and is going to try and get incriminating statements from you. All a police officer needs is resonable suspicion to detain you, and you are not 'free to leave.' reasonable suspicion does not necesarilly require you be read your rigts.

NavyLCDR
January 12, 2011, 10:45 PM
navyLT,

it was all good til it got to the us supreme court. That is where it was ruled IN THIS CASE the original patdown was unlawful.

Again, avs11054, I would ask you to post a citation that supports your claim. I would suggest that you actually look at the link I posted. Let me post the header for you:

508 U.S. 366 (1993)
MINNESOTA
v.
DICKERSON
No. 91-'.

United States Supreme Court.
Argued March 3, 1993.
Decided June 7, 1993.
CERTIORARI TO THE SUPREME COURT OF MINNESOTA

367*367 White, J., delivered the opinion for a unanimous Court with respect to Parts I and II, and the opinion of the Court with respect to Parts III and IV, in which Stevens, O'Connor, Scalia, Kennedy, and Souter, JJ., joined. Scalia, J., filed a concurring opinion, post, p. 379. Rehnquist, C. J., filed an opinion concurring in part and dissenting in part, in which Blackmun and Thomas, JJ., joined, post, p. 383.

All of the quotations that I posted were from the US Supreme Court decision! You do recognize the names White, Stevens, O'Connor, Scalia, Kennedy, Souter, Rehnquist, Blackmun and Thomas, don't you?
http://www.supremecourt.gov/about/members.aspx

just because you are not 'free to leave' does not mean you are in custody and must be read your rights. You only have to be read your rights if you are not free to leave he police officer is going to ask you questions about a crime and is going to try and get incriminating statements from you. All a police officer needs is resonable suspicion to detain you, and you are not 'free to leave.' reasonable suspicion does not necesarilly require you be read your rigts.

On this point, I agree with you.

NavyLCDR
January 12, 2011, 10:55 PM
To help your understanding of the limits of evidence obtained during a Terry Frisk, here is another excerpt from the US Supreme Court decision:

http://supreme.justia.com/us/508/366/case.html

Held:

1. The police may seize nonthreatening contraband detected through the sense of touch during a protective patdown search of the sort permitted by Terry, so long as the search stays within the bounds marked by Terry. pp.372-377.

(a) Terry permits a brief stop of a person whose suspicious conduct leads an officer to conclude in light of his experience that criminal activity may be afoot, and a patdown search of the person for weapons when the officer is justified in believing that the person may be armed and presently dangerous. This protective search-permitted without a warrant and on the basis of reasonable suspicion less than probable cause-is not meant to discover evidence of crime, but must be strictly limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others. If the protective search goes beyond what is necessary to determine if the suspect is armed, it is no longer valid under Terry and its fruits will be suppressed. Sibron v. New York, 392 U. S. 40, 65-66. pp. 372-373.

Sebastian the Ibis
January 13, 2011, 12:13 AM
A lawyer told me always to ask "Am I free to leave". If the answer is "No" then I am in custody and must be read my rights and have a right to an attorney. Then I pay my attorney some money to take care of the problem.

Is there any truth to this?

Yes. Police like to operate in gray world where you believe you have to do everything they say, but they can explain to a judge that you were just two buddies chatting on the side of the road after they pulled you over and you confessed everything out of your own free will. If you ask the cop point blank "Am I under arrest or free to leave?" you are forcing them out of the gray area. There is no consent, you are invoking your rights. If you are there you are not there voluntarily.


just because you are not 'free to leave' does not mean you are in custody and must be read your rights. You only have to be read your rights if you are not free to leave he police officer is going to ask you questions about a crime and is going to try and get incriminating statements from you. All a police officer needs is resonable suspicion to detain you, and you are not 'free to leave.' reasonable suspicion does not necesarilly require you be read your rigts.

If a cop is fishing for a confession or search there is no reason for them to detain you if they cannot easily ask questions. You force cops out of the gray area by asking "am I free to leave". As AVS said "You only have to be read your rights if you are not free to leave he police officer is going to ask you questions about a crime and is going to try and get incriminating statements from you." The cop knows he can't ask you questions there is not any reason to detain you, and he will cut you loose. Also he knows/assumes you know your rights and will not confess and they will try pulling over someone else who is dumber. However, If you are a criminal and they are holding you for a witness ID or something similar, then there is nothing you can do and you are going to jail.

For the most part, Criminal Justice is all a numbers game. Cops, prosecutors and judges see the same things day in and day out and assume that since 90% of the people in situation X are guilty, every individual in situation X is guilty/ will do as the cop asks. If you are under suspicion, you have to break out of that as quickly as you can. Asking "am I free to leave" establishes that you are not an easy mark and may move you into the 10%. Also, it stops the cop from accumulating more information which could lead to a search, confession or arrest.

Follow your attorneys advice. Not just because me, some guy on the internet said so, but because he is your flesh and blood attorney looking out for your interests.

Erik
January 13, 2011, 02:18 AM
Miranda is required when there are three things:

Cops
Custody
Questioning

Only two of those things? Miranda is not required.

pitsmile
January 13, 2011, 02:48 AM
A lawyer told me always to ask "Am I free to leave". If the answer is "No" then I am in custody and must be read my rights and have a right to an attorney. Then I pay my attorney some money to take care of the problem.

Is there any truth to this?

An officer can detain you without placing you under arrest. This means he/she is still conducting business and determining whether a law has been broken or cause for an arrest. The officer is required to read you Miranda Rights if you are under arrest. If you do not comply - the officer can place you under arrest.
---------------

In NJ an officer cannot search your vehicle without one of three reasons:
1- something illegal in plain view
2- something within your reach they feel is a threat to them
3- a warrant
This does not mean it isn't done.
---------------

There is a difference between a frisk and a search. A frisk (terry stop) allows an officer to pat down the outside of your clothing, if the circumstances and context of your actions and location raise suspicion- fitting a possible criminal scenario. (walking down the street with a crowbar where car break-ins have been reported recently) IF the officer feels something under your clothing that fits something he/she recognizes to be illegal from their experience, probable cause for a full search is justified - if the item turns out to be illegal an arrest is legal.
----------------

I do believe asking to step out of your vehicle is an order, not a suggestion, and failure to comply can result in an arrest.

Boberama
January 13, 2011, 03:43 AM
Try to stay seated and they will call in backup or forceably remove you.

NavyLCDR
January 13, 2011, 08:49 AM
There is a difference between a frisk and a search. A frisk (terry stop) allows an officer to pat down the outside of your clothing, if the circumstances and context of your actions and location raise suspicion- fitting a possible criminal scenario. (walking down the street with a crowbar where car break-ins have been reported recently) IF the officer feels something under your clothing that fits something he/she recognizes to be illegal from their experience, probable cause for a full search is justified - if the item turns out to be illegal an arrest is legal.

Your statement seems to be in conflict with Minnesota v. Dickerson. Can you please explain to us the difference in your scenario above and what happened in Minnesota v. Dickerson where the arrest and evidence were thrown out by the court?

From:
http://scholar.google.com/scholar_case?case=7218526854673273191&q=minnesota+v.+dickerson&hl=en&as_sdt=2,48&as_vis=1

The officers pulled their squad car into the alley and ordered respondent to stop and submit to a patdown search. The search revealed no weapons, but the officer conducting the search did take an interest in a small lump in respondent's nylon jacket. The officer later testified:

"[A]s I pat-searched the front of his body, I felt a lump, a small lump, in the front pocket. I examined it with my fingers and it slid and it felt to be a lump of crack cocaine in cellophane." Tr. 9 (Feb. 20, 1990). The officer then reached into respondent's pocket and retrieved a small plastic bag containing one fifth of one gram of crack cocaine. Respondent was arrested and charged in Hennepin County District Court with possession of a controlled substance.

Is this not the exact same scenario you are describing, pitsmile? How is your scenario different?

And the results of this scenario?

1. The Terry Stop and resultant Terry frisk WERE JUSTIFIED:
Respondent has not challenged the finding made by the trial court and affirmed by both the Court of Appeals and the State Supreme Court that the police were justified under Terry in stopping him and frisking him for weapons.

2. The officer felt what he believed, due to his experience, to be cocaine:
Thus, the dispositive question before this Court is whether the officer who conducted the search was acting within the lawful bounds marked by Terry at the time he gained probable cause to believe that the lump in respondent's jacket was contraband.

3. The officer ascertained the object in the pocket was cocaine with only very minor manipulation of the object:
Rather, the court concluded, the officer determined that the lump was contraband only after "squeezing, sliding and otherwise manipulating the contents of the defendant's pocket" — a pocket which the officer already knew contained no weapon.

4. During the Terry Frisk, the officer's were not searching for drugs, they were searching for weapons:
Here, the officer's continued exploration of respondent's pocket after having concluded that it contained no weapon was unrelated to "[t]he sole justification of the search [under Terry: ] . . . the protection of the police officer and others nearby." 392 U. S., at 29. It therefore amounted to the sort of evidentiary search that Terry expressly refused to authorize, see id., at 26, and that we have condemned in subsequent cases. See Michigan v. Long, 463 U. S., at 1049, n. 14; Sibron, 392 U. S., at 65-66.

5. Since the Terry Frisk is ONLY for weapons, and since an object in a pocket is NOT in plain sight, and clearly an object in a pocket must be manipulated or removed to determine what it is, a search warrant or consent to a further search must be obtained for the evidence removed from a pocket to be admissible, otherwise:
Although the officer was lawfully in a position to feel the lump in respondent's pocket, because Terry entitled him to place his hands upon respondent's jacket, the court below determined that the incriminating character of the object was not immediately apparent to him. Rather, the officer determined that the item was contraband only after conducting a further search, one not authorized by Terry or by any other exception to the warrant requirement. Because this further search of respondent's pocket was constitutionally invalid, the seizure of the cocaine that followed is likewise unconstitutional. Horton, 496 U. S., at 140.

When, in the Dickerson case, the officers felt what appeared to be cocaine, it would seem the correct action would have been to stop, inform Dickerson that he was being detained under suspicion of possessing crack cocaine; and either obtain consent from Dickerson to enter his pocket and retrieve the item there OR if consent was refused, obtain a search warrant prior to entering the pocket to remove the item.

What am I missing here?

FuzzyBunny
January 13, 2011, 11:15 AM
This might be the video mentioned above.

BUSTED: The Citizen's Guide to Surviving Police Encounters
http://www.youtube.com/watch?v=yqMjMPlXzdA

This video is one that rings so true!
I am not anti cop and in fact come from a family of police officers.
I am very anti BAD COP. I know great cops and a few very bad ones. You never know which one is pulling you over. Show the same respect you would want.

Don't Talk to Cops, Part 1 and Part 2
http://www.youtube.com/watch?v=i8z7NC5sgik&feature=related
http://www.youtube.com/watch?v=08fZQWjDVKE&feature=related

NavyLCDR
January 13, 2011, 11:28 AM
+1 for the BUSTED video.

The only thing I don't like about that video is that all the subjects in the video DID have something to hide! I would like to see them do one where the subject is Joe LawAbidingCitizen...something like a guy gets stopped travelling THROUGH New York but traveling between two "free" states, has his gun unloaded in the trunk, cop asks him if he has guns, guy says yes, cop asks to see them, guy opens his trunk, cop cites him for illegal possession of a handgun without a license in New York.

I don't consent to any searches because I value the Constitution - not because I have something to hide.

Erik
January 13, 2011, 11:35 AM
In Minnesota v. Dickerson, the United States Supreme Court unanimously adopted the plain touch doctrine, thereby allowing officers to seize evidence recognized through the sense of touch during a lawful patdown without a warrant.

The min point of the PTD? The officer must, without manipulation, immediately recognize that item felt for what it is.

NavyLCDR
January 13, 2011, 12:02 PM
In Minnesota v. Dickerson, the United States Supreme Court unanimously adopted the plain touch doctrine, thereby allowing officers to seize evidence recognized through the sense of touch during a lawful patdown without a warrant.

The min point of the PTD? The officer must, without manipulation, immediately recognize that item felt for what it is.

Then what would keep an Officer from immediately removing ANYTHING that he/she felt in a pocket under the pretext that they immediately recognized it through the sense of touch as an illegal item?

For instance, let's say they felt an item in my left pants pocket, and pulls it out: oh that's your car keys, sorry felt like a crack pipe to me when my hand brushed against it. Item in my right front pocket and pulls it out: oh that's a cigarette lighter, sorry, felt like a spring operated knife to me, but I am not allowed to manipulate the item in your pocket to find out. Item in my left shirt pocket, pulls it out: oh, pack of cigarettes, sorry felt like a package of powder cocaine to me. Right shirt pocket: bag of weed, BINGO, I knew that was a bag of weed as soon as my hand brushed against the outside of your pocket! :scrutiny:

Deanimator
January 13, 2011, 12:05 PM
i didnt get to see what samuel said because it was removed (for being off topic, or incorrect?) so quite a bit of this thread doesnt make sense anymore.
The assertion was that failure to CONSENT to a search provided PROBABLE CAUSE for an involuntary search. This is of course errant nonsense.

Deanimator
January 13, 2011, 12:14 PM
just because you are not 'free to leave' does not mean you are in custody and must be read your rights
You're confusing two different issues.


If the LEO says you're NOT free to leave, you ARE in custody, PERIOD. At that point, other than any STATUTORY identification/notification requirements, your best bet is to invoke your Fifth Amendment right to remain silent. If lawful, make sure your voice recorder is going. Do not say a WORD without your lawyer present. Save the "banter" for "Law & Order".
Miranda rights relate to being questioned. If you're not being questioned, they're not strictly relevant. Of course if you're the subject of a custodial interrogation WITHOUT your Miranda rights being read to you, that taints any admissions you might make.

Guns and more
January 13, 2011, 12:40 PM
i suppose a fella with a car that contains something that will get him in trouble might say he didnt want them to look inside because of it.
Or perhaps a fella' might just want to exercise his right as in the fourth amendment.

According to your logic, random searches of homes would be fine too.

Rights are like muscles. If you don't exercise them, the get weak and go away.

northernlights78
January 13, 2011, 12:46 PM
if an officer sees a rifle case in your car, by law they can look in the case to make sure the rifle is legal and unloaded. But, this does not give them further right to search the entire car. Unless the rifle search goes badly...

NavyLCDR
January 13, 2011, 01:00 PM
if an officer sees a rifle case in your car, by law they can look in the case to make sure the rifle is legal and unloaded.

Not if the case is locked and not if they have no other reason to detain you.

Panzercat
January 13, 2011, 01:01 PM
Step out of the vehicle. Remember to leave your cell inside if you're in California, or hell, just in case since its apparently open season on them now. Locking the doors is also advisable as it gives clear indication that you do not concent to a search, especially if you're not the one unlocking them.

avs11054
January 13, 2011, 02:13 PM
You're confusing two different issues.


If the LEO says you're NOT free to leave, you ARE in custody, PERIOD. At that point, other than any STATUTORY identification/notification requirements, your best bet is to invoke your Fifth Amendment right to remain silent. If lawful, make sure your voice recorder is going. Do not say a WORD without your lawyer present. Save the "banter" for "Law & Order".
Miranda rights relate to being questioned. If you're not being questioned, they're not strictly relevant. Of course if you're the subject of a custodial interrogation WITHOUT your Miranda rights being read to you, that taints any admissions you might make.

This is basically what the rest of my post stated...

and as stated, if a subject is not free to leave, Miranda is only required if incriminating questions are going to be asked

avs11054
January 13, 2011, 02:19 PM
Then what would keep an Officer from immediately removing ANYTHING that he/she felt in a pocket under the pretext that they immediately recognized it through the sense of touch as an illegal item?

For instance, let's say they felt an item in my left pants pocket, and pulls it out: oh that's your car keys, sorry felt like a crack pipe to me when my hand brushed against it. Item in my right front pocket and pulls it out: oh that's a cigarette lighter, sorry, felt like a spring operated knife to me, but I am not allowed to manipulate the item in your pocket to find out. Item in my left shirt pocket, pulls it out: oh, pack of cigarettes, sorry felt like a package of powder cocaine to me. Right shirt pocket: bag of weed, BINGO, I knew that was a bag of weed as soon as my hand brushed against the outside of your pocket! :scrutiny:
In my opinion, the fact that most cops know the enormous benefit of this ruling and would not want to lose this tool by abusing their authority. After handling hundreds or thousands of crack pipes, and the same amounts of bags of marijuana, they both have a very distinct feel. Something such as a lighter or pack of cigarettes also has a very distinct feel, and I would not want to mess this up by "mistaking" items for contraband.

Deanimator
January 13, 2011, 02:35 PM
In my opinion, the fact that most cops know the enormous benefit of this ruling and would not want to lose this tool by abusing their authority. After handling hundreds or thousands of crack pipes, and the same amounts of bags of marijuana, they both have a very distinct feel. Something such as a lighter or pack of cigarettes also has a very distinct feel, and I would not want to mess this up by "mistaking" items for contraband.
It's dangerous to generalize across ALL of law enforcement, favorably or unfavorably.

Just like anybody else, LEOs have engaged in insanely irresponsible and self-defeating behavior, for reasons obvious as well as totally unknown except to the perpetrator. One common thread is that like with any other criminal or tortious behavior, the less the perpetrator thinks that there will be negative consequences, the more likely he is to transgress. If a recklessly risk taking LEO has violated the search and seizure laws and the 4th Amendment with a bunch of people (especially criminals) and gotten away with it, that reinforces that behavior. When he tries the same thing with an honest person who knows the law and is determined to hold him to it, things get ugly fast.

DaisyCutter
January 13, 2011, 02:46 PM
The officer is required to read you Miranda Rights if you are under arrest.

Really? That's new to me.

I've arrested a hundred people I probably didn't read Miranda to.

I'm on patrol, I see a guy chugging a beer and walking down the street.

I snap a quick piccy with my digicam. Then I arrest him, and take him to jail.


I really don't give a flip what he has to say. I have ample evidence against him without an interview.

I book him and go catch another.

Miranda only applies if they are detained (not free to leave) AND being asked questions.

Countless crimes don't require Miranda. Driving on a suspended license, for instance. I take the driver to jail and staple a copy of his driving record (showing the suspension) to my report.

No questions, no Miranda.

On view alcohol and drug violations. Warrants... No Miranda.



I've heard rumors that Miranda may go away some day. There have been compelling arguments that Miranda is common knowledge to everyone, therefore it need not be repeated. Frankly, I've never been hindered by Miranda.

IF a driver is swerving, reeks of booze, and can't stand outside his car without swaying, then he's impaired and I'll arrest him for DUI, regardless of whether he consents to do FSTs, provide blood or breath samples, or tell me how much he's had to drink.

With an expensive enough attorney, even OJ Simpson ca slip criminal charges.

My job is to get the sucker off the road before he hurts an innocent. I've never been barricaded by lack of consent or Miranda.

Many people love to clown a cop. Cops deal with these tests every shift. Most cops don't get clowned the same way twice. Got something Smokie ain't seen? How original is your plan?

I've found dope hidden behind a colostomy bag.

Who can beat that?


I wonder if cops have their own tricks to get a search, or consent? How many of those tricks has the average person seen?

TexasRifleman
January 13, 2011, 02:51 PM
The officer is required to read you Miranda Rights if you are under arrest.

Be careful with that. It often happens that the LE will arrest, take you into custody, book you into jail etc long before you ever hear about your Miranda rights.

There isn't any "immediacy" to Miranda as far as strict time limits that I am aware of so there may be some delay between the moment you are placed under arrest and when you are told of your rights.

Reading off the card as the cuffs go on seems to only happen on television.

Seems to be the real world application of it anyway, from talking to LE folks over the years.

NavyLCDR
January 13, 2011, 03:10 PM
In my opinion, the fact that most cops know the enormous benefit of this ruling and would not want to lose this tool by abusing their authority. After handling hundreds or thousands of crack pipes, and the same amounts of bags of marijuana, they both have a very distinct feel. Something such as a lighter or pack of cigarettes also has a very distinct feel, and I would not want to mess this up by "mistaking" items for contraband.

Seems like it could get really ugly in court.

Officer: "During the Terry Frisk I felt in the subject's pocket what I clearly and immediately could discern from my past experience was a bag of dope."

Subject: "I felt the officer hesitate on that particular pocket and he was moving the contents around, like he was trying to feel something."

Defense Lawyer: "Officer, how did you know it was a bag of dope? How did you discern that from a bag of candy, or a bag of legal medication or tobacco?"

It just seems to me like a more sound practice to obtain evidence during a Terry Stop would be, if the subject did not consent to the search,to stop and continue to detain the subject and attempt to obtain a warrant.

I do have to admit, though, I am just armchairing this and not in law enforcement or legal practice.

I also agree that Miranda is ONLY required when a subject is being questioned under suspicion of a specific crime. If hard evidence is found of a crime, and the suspect is being charged and prosecuted based on that evidence, there is no requirement for Miranda. Now, if a person is stopped for speeding, and the officer asks, "How fast were you going" and the subject says "60" (in a 45), AND the officer's radar is broken... then Miranda might be a defense.

avs11054
January 13, 2011, 03:49 PM
The only problem with asking for consent as opposed to the terry frisk is that the frisk is done almost immediately after stopping a person, where consent, as stated throughout this thread, is likely to have issues with how consenual it actually is unless it is one of the last things done. If you were to stop someone, talk to them for a couple minutes, get their ID from them, take a few minutes to run them, and then give them their ID back, you've kind of lost your exigency to do a terry frisk. The defense would argue that why just before you released them did you feel your safety was in jeapordy and not the 5 minutes prior that you were with them.

Navy LT,

The quotes you give are exactly why some officers won't use 'plain feel' as a means to establish PC. That would be the exact conversation when the officer is on the stand. However, as for right now, the supreme court says officers are allowed to use it.

Shadow 7D
January 13, 2011, 04:25 PM
Lets just clear something up

So the cop says " do you mind if I just check you real quick to make sure you don't have a weapon or something dangerous on you that might hurt me"

Guy (or gal) kinda obliviously mumbles "OK"
and hence consents to being searched, with anything found being legal.

Terry: Officer says 'put your hand on the trunk of your car, do you have anything in your pockets that is going to poke me or will hurt me, do you have anything you want to tell me about now?'

No consent, limited to immediate danger 'weapons' etc.

avs11054
January 13, 2011, 04:40 PM
a consenual search has to be given voluntarily and cannot be coerced. It is up to the officer to show the subject consented voluntarily and no coercion was used. A 'terry frisk' is done for the officers safety, AND ONLY FOR WEAPONS, but the officer must have articuable reasons as to why he is doing a terry frisk. Just by an officer saying 'put your hands on the car' and then patting you down does not make it lawful. Such reasons would include time of day, type of clothing the person is wearing, what the suspect is detained for, suspects actions and demeanor, the area of the stop, and other things.

where the officer can use other contraband found during the search is where minnesota vs dickerson comes into play.

NavyLCDR
January 13, 2011, 05:08 PM
^^^^^ I agree. (not that it counts for much!)

wishin
January 13, 2011, 05:22 PM
If hard evidence is found of a crime, and the suspect is being charged and prosecuted based on that evidence, there is no requirement for Miranda.

Please expound on this as it applies to police questioning prior to trial.They think the guy's guilty, charge him and then they don't have to Mirandize?

vanagon40
January 13, 2011, 06:00 PM
There is no requirement that a suspect or person arrested ever receive the Miranda advisement.

The Miranda advisement is required only prior to custodial interrogation. If the suspect in not "in custody," no Miranda required. If there is no interrogation, Miranda is not required.

The remedy for failure to provide the Miranda advisement is that statements made in response to "custodial interrogation" will be excluded from the prosecution's case in chief.

There are exceptions to the Miranda requirements and statements taken without the proper Miranda advisement may be used for other purposes (e.g., impeachment).

Many criminal defendants are arrested and charged without ever receiving the Miranda advisement.

cassandrasdaddy
January 13, 2011, 06:02 PM
and many a doofus has had that smirk wiped off his face when they learn the reality of miranda

wishin
January 13, 2011, 06:25 PM
Thanks for the clarification vanagon40.

Guillermo
January 13, 2011, 06:30 PM
The most powerful tool that a policeman has is his ink pen. And a dirty cop can ruin your life with one. (let's not pretend there aren't any)

Be polite but let them know in a non posturing way that you know the law and that you are not going to stand for any crap.

My way is as follows. (not that I have ever had to use it)

"officer, I have several cops in my family so I can understand your position, but I come from a family of lawyers and if I were to give up a civil right for the asking I would NEVER hear the end of it."

This way you are polite, you have family in the "brotherhood", you have free legal help, you probably know the law.

If anyone has a better way to refuse and not raise any hackles please chime in.

NavyLCDR
January 13, 2011, 06:32 PM
NavyLT

If hard evidence is found of a crime, and the suspect is being charged and prosecuted based on that evidence, there is no requirement for Miranda.

Please expound on this as it applies to police questioning prior to trial.They think the guy's guilty, charge him and then they don't have to Mirandize?

Sure. Notice in my post I said charged and prosecuted based on hard evidence. Let's say a 19 year old gets pulled over for running a stop sign. Cop smells alcohol. Cop does a breathalyzer and subject blows a .15. Subject is arrested, charged, prosecuted and convicted without ever being mirandized (SP?). Why? Because the evidence, not testimony, convicted him. What would be the reason to mirandize him?

Now, let's say our subject is in hand cuffs, without Miranda, on the way to the cop shop. And the cop asks him, "So, how many did you have tonight?" and the kid says, "Oh, I don't know, 4 or 5 beers." That answer would not be able to be introduced as a confession because there was no Miranda warning given. But he could certainly still be prosecuted and convicted based on the breathalyzer.

Now, if the police questioned him, without Miranda, "Where did you get the alcohol?" and he said, "I got it from Joe Schmoe." The police could use his answer to go after Joe Schmoe, no problem. Without Miranda, what the police could NOT do would be to introduce our 19 year old subject's statement as a confession that he, himself obtained or purchased alcohol. But the DUI would still stand on the evidence of the brethalyzer and whatever else the officer observed and his testimony could still be used against Joe Schmoe (to the best of my understanding).

Now, let's say our kid, without Miranda, answers the cop, "I bought a six pack, had 4 of them." Without Miranda, cop asks, "Where are the other 2?". Kid says, in the back seat of the car. Cop goes and retrieves the 2 cans out of the back seat of the car. Aside from the search being legal or not (beyond the scope of this exact discussion), the 2 cans left could be used against the kid, because they are hard evidence... but his statement of "I drank 4" could not be used against him, without Miranda.

wishin
January 13, 2011, 06:37 PM
Thanks for the detailed explanation. Makes sense.

NavyLCDR
January 13, 2011, 07:07 PM
and many a doofus has had that smirk wiped off his face when they learn the reality of miranda

On which side? Defense or prosecution? :D

Miranda is one of those things sensationalized way too much by the media, IMHO. As is the Terry Frisk when you see the cop taking everything out of the subjects pockets and putting them on top of the car: keys, wallet, cigarettes, bag of weed..."Oh, what's this here!"

Deanimator
January 13, 2011, 07:10 PM
My way is as follows. (not that I have ever had to use it)
You don't need to explain or apologize for anything.

You just need to know and obey the law.

You can be formally polite without being obsequious.

I have zero desire to socialize or interact with police, especially involuntarily, so it's going to be minimal communications at most.

Art Eatman
January 13, 2011, 07:36 PM
And this has wandered away from the opening question...

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