Probable cause searches in vehicles....

Here's a recent report in our local paper:

When officers stopped the man at 8:36 p.m. in the area of Michigan and Heron streets for a traffic violation, he made “furtive movements” around the console area of his car, according to an Aberdeen Police Department press release. As officers went to detain him, the man fled on foot and was caught by officers after he ran a short distance, the release said.
After being caught, the man continued to resist the officers’ efforts to detain him, dropping a revolver on the ground. Officers used a taser to subdue the man before handcuffing him, according to the release.
While searching the man, officers found a knife in his waistband, determined his gun was loaded and found more ammunition on him, the release said.
The suspect is a convicted felon and is thus prohibited from possessing a firearm, according to police. He was arrested for unlawful possession of a firearm, obstructing a law enforcement officer and resisting arrest.

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The best part is as follows:

Police expected to search the suspect’s vehicle Wednesday afternoon after obtaining a search warrant,

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Does this vehicle give them "probable cause" to search for drugs??

I’m no lawyer -just a retired cop who did a career that frequently involved vehicle searches and for more than fifteen years was a supervisor, then a commander that had to approve actions taken by officers on the street... I’ve seen both good and bad vehicle searches and the first order of business in any criminal case is a determination by the judge whether a search was legal or not. If the judge rules a search improper you not only lose the search but anything that came as a result of that search... I have personally been on both sides of that result. Additionally court rulings on vehicle stops and vehicle searches evolve over time. Cases that I lost in the seventies were just fine when our young cops brought them in the early nineties...

As a result investigators handling homicide cases will almost always try to get search warrants before doing any vehicle searches since matters involved are serious and a warrants issued by a judge are much more likely to withstand a challenge in court as to legality...

Do witnesses lie or distort the facts (including some cops)? That’s why we have laws, courts, and lawyers on both sides of every issue... Our system is far from perfect - but it sure beats the heck out of everyone else’s justice system around the world...

I’ll stand down and listen to the lawyers...

This may be a bit off topic in relation to guns and "gun stickers" But there seems to be no need for "probable cause" when stopped by game wardens, FWC or whatever name they go by in your State. Especially out on a boat. You get stopped for a "safety check" nothing you can do about it and they can search your whole boat, not just for safety gear.

Pull a boat on a trailer down in the Fl Keys (at lobster season)and you are randomly stopped to check for undersized lobsters. If any thing illegal (fish or game) they can seize you vehicle boat the whole deal. Or if you get stopped due to a trailer light being blown out,

"Have any lobsters", No Sir/Mam. "Mind if I search your vehicle and coolers?" Yes I mind, "well we are gonna anyway as we smell fish"

Please keep in mind that, as you pointed out, search and seizure laws vary greatly between the different states. I spent more than 30 years as a LEO in California where there were no state law restrictions on vehicle searches (Thanks to California's "Truth in Evidence" Proposition 8). I now live in Washington state where things are very much the opposite.

The key federal case regarding vehicle searches based on probable cause is the 1982 U.S. Supreme Court decision in U.S. v Ross. It held that LEOs having probable cause to search a motor vehicle could search it as thoroughly as if they had a search warrant without need of a search warrant. Subsequent case law has restricted that ability where there are locked containers that could be removed from the vehicle and secured pending a warrant and where the motor vehicle lacked the mobility qualities of a vehicle.

There is nothing that would prevent a LEO from considering the content of any decals, stickers, or markings in the formulation of "Probable Cause", but unless you've got a sticker that reads "I have an illegal machine gun in the trunk", it's kinda hard to see where a decal or sticker, standing alone, would provide probable cause for a search. A "Come and Take it" decal may indicate that a person has an affinity for firearms, but it doesn't tell me that the person is probably illegally carrying a firearm.

With that being the case, why would LEO's ever seek a search warrant for a motor vehicle, the Ross case makes clear that it's not necessary under the Constitution? There is good reason. At the risk of over-simplifying a lot of case law, think of searches being rated on a continuum of "Clearly Good - Grey Area - Clearly Bad." If I conduct a search without a warrant, and in compliance with Ross, and the defendant seeks to exclude the evidence recovered, then the prosecutor has to show the court that the search was clearly good. If the court finds the search was in the grey area or clearly bad, the evidence gets tossed. On the other hand, if I do the same search with a warrant and the defendant seeks to exclude the evidence recovered, then the defense attorney has to show that the search was clearly bad. Thus, the net effect of having the search warrant is that I get the advantage of a "Grey Area" determination and the burden of proof as to the search's lawfulness shifts to the defense. Both of those are pretty significant advantages.

Search warrants are not difficult to obtain. Every place that I've worked, we've had judges bend over backwards to make themselves available to handle warrants. I've never seen one "Rubber Stamped", but more than once, I've driven to a judge's home at 2:00 am to get an urgent warrant signed.

The seminal U.S. Sup. Ct. cases involving autos are Carroll v. U.S. (1925), Terry v. Ohio (1968), and Arizona v. Gant (2009). For the seminal case on a reasonable expectation of privacy, you go to Katz v. U.S. (1967). If you read those, you will have the idea about the basics of search and seizure in public and then can read more specific cases to your liking and in your jurisdiction. Most states have their own caselaw on search and seizure in addition. Some grant a higher level of protection than does the U.S. courts do, while no state can go below the federal std. Some states have basically made their search and seizure stds. under state constitutions the same as the federal interpretations, others choose to give greater protections from search and seizure.

There exists a number of precedents based on seminal cases that deal with all sorts of factual permutations of basic search and seizure protocols regarding automobiles including a recent one dealing with the status of a rental vehicle. But, generally, stickers or other such things that draw attention to the vehicle can be a factor in a stop but generally not the only factor considered. But couple a sticker saying armed and dangerous, dark tinted windows, trying to obscure your license plate via smoked glass or some sort of doodad, driving too fast for conditions, outstanding warrants or unpaid traffic tickets, a marijuana leaf sticker in a non-tolerant state, and a bunch of other articulable objective facts that would lead to reasonable suspicion up to probable cause. then you might get some extra attention from a police officer doing traffic duty.

Whether you are actually stopped and/or searched depends on a bunch of factors involving police discretion that is beyond the scope of the constitutional issues involved. If you want to avoid unpleasant contacts, then follow traffic laws, keep your vehicle in good repair, leave sloganeering off your vehicle, and give the appearance of being a law abiding citizen.

Oh, and btw, if you consent to a search, it is not a search.

In other words if "they" really want to search your vehicle "they" will find a way.
"Oh, I smelled weed" or I am waiting for a K9 unit that will of course "alert"

boom boom said:

The seminal U.S. Sup. Ct. cases involving autos are Carroll v. U.S. (1925), Terry v. Ohio (1968), and Arizona v. Gant (2009). For the seminal case on a reasonable expectation of privacy, you go to Katz v. U.S. (1967). If you read those, you will have the idea about the basics of search and seizure in public and then can read more specific cases to your liking and in your jurisdiction. Most states have their own caselaw on search and seizure in addition. Some grant a higher level of protection than does the U.S. courts do, while no state can go below the federal std. Some states have basically made their search and seizure stds. under state constitutions the same as the federal interpretations, others choose to give greater protections from search and seizure.

There exists a number of precedents based on seminal cases that deal with all sorts of factual permutations of basic search and seizure protocols regarding automobiles including a recent one dealing with the status of a rental vehicle. But, generally, stickers or other such things that draw attention to the vehicle can be a factor in a stop but generally not the only factor considered. But couple a sticker saying armed and dangerous, dark tinted windows, trying to obscure your license plate via smoked glass or some sort of doodad, driving too fast for conditions, outstanding warrants or unpaid traffic tickets, a marijuana leaf sticker in a non-tolerant state, and a bunch of other articulable objective facts that would lead to reasonable suspicion up to probable cause. then you might get some extra attention from a police officer doing traffic duty.

Whether you are actually stopped and/or searched depends on a bunch of factors involving police discretion that is beyond the scope of the constitutional issues involved. If you want to avoid unpleasant contacts, then follow traffic laws, keep your vehicle in good repair, leave sloganeering off your vehicle, and give the appearance of being a law abiding citizen.

Oh, and btw, if you consent to a search, it is not a search.

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A couple of quick points in response to the above:

1) Carroll v U.S. is a bedrock case concerning vehicle searches, but Carroll did little to clarify the extent of a permissible search. The Ross case relied heavily on the reasoning of Carroll, but also provided a "Bright Line" rule for officers to follow that was absent from Carroll.

2) Terry v Ohio does not address vehicle searches. It was about a pedestrian stop. It is a very notable case because it recognized the "Reasonable Suspicion" standard for an investigative stop (and different from "Probable Cause") and because it created the limited purpose (for weapons) search authority.

3) Arizona v Gant has nothing to do with "Probable Cause" vehicle searches. It significantly reduced the ability of LEO's to conduct vehicle searches under the "Incident to Arrest" authority, not the "Probable Cause" authority. It's also a kinda weird case in that the Supreme Court effectively overturned New York v Belton (which provided a very liberal authority for such searches) without explicitly doing so.

4) A consensual search is still a search, but is also one where the Constitutional protections are largely irrelevant because consent was given (I think that's what you were trying to say).

Rule3 said:

This may be a bit off topic in relation to guns and "gun stickers" But there seems to be no need for "probable cause" when stopped by game wardens, FWC or whatever name they go by in your State. Especially out on a boat. You get stopped for a "safety check" nothing you can do about it and they can search your whole boat, not just for safety gear.

Pull a boat on a trailer down in the Fl Keys (at lobster season)and you are randomly stopped to check for undersized lobsters. If any thing illegal (fish or game) they can seize you vehicle boat the whole deal. Or if you get stopped due to a trailer light being blown out,

"Have any lobsters", No Sir/Mam. "Mind if I search your vehicle and coolers?" Yes I mind, "well we are gonna anyway as we smell fish"

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Keep in mind that the Fourth Amendment does not require a warrant in order to search, nor does it require "Probable Cause" for a search (although it does require "Probable Cause" for a search warrant to be issued). All the Fourth Amendment requires is that searches be reasonable. There is a large body of case law holding that regulatory searches are lawful, so long as they are reasonable. That's the basis for a lot a Fish and Game related searches, and for searches of boats and commercial vehicles.

You're mistaken as to the authority to conduct an unrestricted search based on a "Safety Check." Such regulatory searches are limited in scope to the purpose of the search. I served as a Coast Guard officer during the early days of the "War on Drugs." A lot of our enforcement efforts were based on random boardings, with the expectation that illegal drugs would be found consistent with existing search authorities. One of those authorities permitted the regulatory search of any U.S. vessel outside of the territorial waters of another nation, and of all vessels within U.S. territorial waters for compliance with U.S. law. That gave access to the vessel's engine room, cargo holds, navigation equipment and such. But there was no authority to search the captain's underwear drawer (the captain's choice of underwear being unregulated by U.S. law). But if that limited search provided "Probable Cause" to believe that there was something illegal in that drawer, then it could be searched for. At the same time, if there was evidence that the vessel crossed an international border (like the 12 mile limit), then the entire vessel became subject to a customs law (virtually unrestricted) search.

Rule3 said:

This may be a bit off topic in relation to guns and "gun stickers" But there seems to be no need for "probable cause" when stopped by game wardens, FWC or whatever name they go by in your State. Especially out on a boat. You get stopped for a "safety check" nothing you can do about it and they can search your whole boat, not just for safety gear.

Pull a boat on a trailer down in the Fl Keys (at lobster season)and you are randomly stopped to check for undersized lobsters. If any thing illegal (fish or game) they can seize you vehicle boat the whole deal. Or if you get stopped due to a trailer light being blown out,

"Have any lobsters", No Sir/Mam. "Mind if I search your vehicle and coolers?" Yes I mind, "well we are gonna anyway as we smell fish"

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Game warden is a whole different world.

A recent Washington state case established a very low bar for stopping a car in this state. A driver was stopped for suspicion of drunk driving. (He was more than 3 times over the legal limit, so it is good that he was stopped.) The police said they stopped him for failure to use his turn signal as required. He claimed they had no probable cause because he used his turn signal when he entered a turn lane, and once in the turn lane, he was in a must turn situation, so continuous use of turn signal is not necessary. If you must turn, why is a turn signal needed? Who would think that would go to the state supreme court, but it did. The court ruled unanimously that when you are in a must turn lane you must use your turn signal continuously, at least for the required distance. So, if you are in Washington State with a gun in your car, use your turn signal, even if in a must turn lane. Use your turn signal, use your turn signal, use your turn signal.

http://www.courts.wa.gov/opinions/pdf/968845.pdf

Is a vehicle stop and demand for ID, registration and proof of insurance a search? Does it require probable cause?

"Probable Cause" is very subjective and to say that any one item (sticker) alone is the sole determinate of a "PC search" would most likely be unlikely. Experience, environment, circumstances, previous knowledge, etc. all play into a "PC search". That may be all that the "LEO" states when a driver ask why he/she was searched, but I can almost guarantee it was not all that was considered.

I never put anything on my vehicle of any sort, less because I fear an unwarranted search but more because I don't want to invite some nut job to become irrational because it's something they disagree with. We live in that kind of world now.

How much consideration is given then to the officer's deposition on body cam video? Because their explanation or statement to a driver is admissable.

I have had one officer state this probable cause, "suspicious activity." That's what would have come out in court. Could they have explained that further in court? Sure. If they actually possessed an explanation. Ultimately it will need to be a good one, not one only subjectively good in their own opinion or imagination but one that passes the test of the rules of evidence.

labnoti said:

Prop 8 never effected the elimination of state law restrictions on vehicle searches that it could have. In one analysis by Diana Friedman, I read, "even in the exclusionary rule context, the court prevented the Act from having as broad of an impact as it might have had by refusing to abrogate pre-1982 rules calling for the exclusion of unlawfully seized evidence unless the United States Supreme Court had expressly held otherwise." With respect to some rules, the legislature even re-enacted the rules to establish precedence over Prop 8.

Furthermore, nothing about Prop 8 prevented the exclusion of evidence made in violation of Federal law and civil rights delineated in the Constitution. Of equal importance, such violations as well as lies about them are also violations of the oath that individual officers have made.

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I'm not sure who "Diana Friedman" is or how much credit should be given to her thoughts (you neglected to provide a citation to her writings), but Proposition 8 most certainly did eliminate state law restrictions on evidence produced from vehicle searches. Please refer to California Constitution, Article One, Section 28(d). You are correct that Proposition 8 did nothing to change the rules regarding the exclusion of evidence based on federal constitutional issues, nor could it. A state constitutional provision cannot conflict with the U.S. Constitution.

labnoti said:

Is a vehicle stop and demand for ID, registration and proof of insurance a search? Does it require probable cause?

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A vehicle stop is not a search, but it is a detention. Most traffic stops are based on "Probable Cause" that a crime is being committed (most often a vehicle code violation), but a traffic stop may also be conducted upon the lower standard of "Reasonable Suspicion" that a crime is occurring. This where the Terry v Ohio case previously discussed comes into play.

labnoti said:

How will the rules of evidence change, indeed how will the overwhelming majority of law enforcement operations change when automobiles are no longer the personal property of the occupants or under their control? When the registration, and insurance are not the responsibility of the occupants, and they are not culpable for any moving violations or infractions of the vehicle code observed?

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One needs a better "Crystal Ball" than I have to fully answer this, but I do have to dispel a couple of mis-understandings displayed in your question. It's generally irrelevant who owns a vehicle with regard to search and seizure issues. The operator (as opposed to owner) is responsible for the operation of the vehicle. With regard to California law (where I have my experience), the operator is also responsible for ensuring that the vehicle is properly registered and insured (California law does also provide a mechanism for the owners to be charged for certain violations, but that does not alleviate the operator of responsibility). As to the future of autonomously operated vehicles, there is no clear answer at present. No state that I am aware of has enacted statutes permitting entirely autonomous operation of vehicles and until such statutes are enacted, it's not possible to state how they will work.

labnoti said:

How much consideration is given then to the officer's deposition on body cam video? Because their explanation or statement to a driver is admissable.

I have had one officer state this probable cause, "suspicious activity." That's what would have come out in court. Could they have explained that further in court? Sure. If they actually possessed an explanation. Ultimately it will need to be a good one, not one only subjectively good in their own opinion or imagination but one that passes the test of the rules of evidence.

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It's hard to tell what you're talking about here. Officers do not provide "deposition(s) on body cam video." Statements made by the officer to a subject may be admissible, but only when relevant to a question being presented to a court.

Keep in mind that it is only required for an officer to possess "Probable Cause" (or "Reasonable Suspicion" for an investigative detention). There is no requirement for the officer to state to the subject what information that determination is based on, nor is there any requirement for the officer to respond to a subject's questions concerning the existence of either. Should the subject be charged with a crime, the now-defendant has the right to challenge the existence of "Probable Cause" or "Reasonable Suspicion" in court (For California cases refer to Penal Code section 1538.5) and to seek the exclusion of any evidence discovered.

LaneP said:

I never put anything on my vehicle of any sort, less because I fear an unwarranted search but more because I don't want to invite some nut job to become irrational because it's something they disagree with. We live in that kind of world now.

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One question I frequently pose to the venire when striking a jury is what bumper stickers or vanity plates do you or your family have on your vehicles. Over the years the responses have been enlightening and humorous - not to mention revealing. I also take note of the folks who don’t answer.

Rule3 said:

This may be a bit off topic in relation to guns and "gun stickers" But there seems to be no need for "probable cause" when stopped by game wardens, FWC or whatever name they go by in your State. Especially out on a boat. You get stopped for a "safety check" nothing you can do about it and they can search your whole boat, not just for safety gear.

Pull a boat on a trailer down in the Fl Keys (at lobster season)and you are randomly stopped to check for undersized lobsters. If any thing illegal (fish or game) they can seize you vehicle boat the whole deal. Or if you get stopped due to a trailer light being blown out,

"Have any lobsters", No Sir/Mam. "Mind if I search your vehicle and coolers?" Yes I mind, "well we are gonna anyway as we smell fish"

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Don't I know it! And this is something that I just never understood how any judge in the land could go along with it.