Illegal search?

[Zrex]

Let me just set up some background info here:

My wife is a world history teacher at the local high school. She used to teach government. One day some of the kids were talking to her about how they had no rights while on school property and how they can have their lockers etc searched. She informed them that while that may be the case on school property, if they are just out and about, and an officer stops them and asks to search their vehicle, they have the right to say NO.

So, one of my wife’s students (hispanic) gets pulled over by a police officer (in a 98% white community). During the course of the stop the officer asks him if he can search the car. The kid tells him, "no. you don't have probable cause". The officer responded, "I do now" and proceeded to search his vehicle.

This can't be legal. Denying a voluntary search does not automatically become the basis for probable cause, does it?

Does this kid have any recourse? BTW: The cop did not find anything illegal and wrote him a ticket for whatever moving violation he was pulled over for originally.

 

[dolanp]

No way. Refusal of a search is not probable cause for a search. If this kid is telling the truth and not exaggerating the situation, then he should hire a lawyer. Though the only thing he could really do is formally complain or sue (maybe), since there were no violations resulting from the illegal search.

 

[WT]

"IF" the kid is telling the truth, the officer had no legal probable cause to search the vehicle.

That said, I know cops who toss cars because they feel something is hinky. If they come across some contraband they seize it. Sometimes they charge the driver, sometimes they don't. Depends on how the case would be made.

I don't think the kid in question has any cause for a suit. After all, what loss did he suffer?

 

[CentralTexas]

"After all, what loss did he suffer?" Kidding right?
Losses:
1-Dignity
2-His 4th Amendment civil liberty was violated
3-Trust in the system was diminished

He has every reason to file a complaint with the police dept here. Sadly the Austin PD is getting known for this sort of thing and closong ranks on bad cops to protect them.
CT

 

[LiquidTension]

Most people don't worry about illegal searches because if something is found, it isn't allowed in court. If nothing is found, it's not an issue since there is no evidence anyway. Problem is, cops do violate the 4th by illegally searching, and the only thing that the victim can get out of it is maybe an apology because "nothing bad happened" as far as a judge is concerned No monetary damages, property damage, etc.

 

[fnforme]

The LEO is only allowed to detain a driver for as long as it takes to write out the citation for whatever traffic offense was committed. About the most evasive search they can do without probable cause is to have police dogs sniff around the car for drugs (can't let the dogs go inside though). What the officer did is illegal, but typical, and the reason why many of us distrust police. His civil rights were violated and he has recourse under the Civil RIghts Act....but I doubt he will hire an attorney to represent him in Federal Court and go through the hassles for such a relatively small infraction. Not saying it's not worth it, I feel that all police corruption and tyranny should be fought. I work in a criminal defense office, we deal with stuff every day. The only difference between many cops and those they arrest are the badges they wear and the misplaced trust we have in them.

 

[Pilgrim]

If the incident occurred as the student said it did, he and his parents should complain to the officer's superiors to make it clear this behavior is unacceptable.

Respect for law enforcement suffers when officers are allowed to violate rights routinely.

Pilgrim

 

[Derby FALs]

Perhaps he could sue the ass in Federal Court for a civil rights violation or just sue him in tort court for money. I would say he has a better chance being a minority.

 

[Zrex]

I should have added this disclaimer to the original post:

Keep in mind that everything I posted is heresay. I don't know the kid, and have no idea if he is telling the truth or not. There are 1 of 3 possibilities:

1. The story is true
2. The story is false
3. The story is partly true and partly false

In all cases, I tend to vote for possibility number 3.

It would be interesting to find out if this stop was videotaped. More than likely we will never know. Either way, I mainly wanted to confirm that denying a search is not probable cause for a search.

Thanks for the responses.

 

[standingbear]

I agree with pilgrim. All LEOs suffer.

I would go a step further and file a complaint with internal affairs as well as speak with whomever is in charge.

 

[LawDog]

Is this Austin, Texas? Last I heard, APD was dash-cam taping all stops. IF the officer asked for permission. and IF the student denied him voluntary consent to search, leading to the officer stating - on tape - that he now had Probable Cause to search the vehicle, then this needs to be reported to APD IA as soon as possible.

The parents and any other concerned citizen should send three registered letters tomorrow: the first one to the relevant shift commander, the second to the officer commanding the Internal Affairs unit and the third to the Chief of the Austin Police Department.

Be polite, state your concerns and courteously inform them that you will be contacting the mayor and your city councilman if this investigated properly.

Be prepared, however, to find out that the stop maybe didn't go quite the way it was first relayed to you, though.

LawDog

 

[Standing Wolf]

Denying a voluntary search does not automatically become the basis for probable cause, does it?

I'm sure it does in communist China.

 

[FPrice]

Lawdog...

Be prepared, however, to find out that the stop maybe didn't go quite the way it was first relayed to you, though.

A question.

Would it be possible to ask the APD about the incident and ask to see the tape before going through all that letter-writing? If your statement above is correct, it might save some embarassment. But if the kid was in the right, it "might" serve the same purpose?

Or am I being naive?

 

[Zrex]

Is this Austin, Texas?

The city is Woodway - small town on the southern side of Waco.

Be prepared, however, to find out that the stop maybe didn't go quite the way it was first relayed to you, though.

I would not be suprised in the least.

 

[El Tejon]

Come now, LawDog, why be so cynical?

Everyone who is stopped by the police is ALWAYS telling the truth.

 

[LawDog]

FPrice, I'm not sure. In my department, you probably could. Other places, I couldn't tell you - it's going to depend on the department.

In general, the smaller departments are more liable to resolve the situation that way. Bigger departments are less so.

Come now, LawDog, why be so cynical?

If I had a nickle for every parent who sailed into the office because their darling child gave them a heavily edited version of events, I'd have purchased a gun collection that would be the envy of every museum in the world.

LawDog

 

[FPrice]

If I had a nickle for every parent who sailed into the office because their darling child gave them a heavily edited version of events, I'd have purchased a gun collection that would be the envy of every museum in the world.

I have learned through hard experience that there are at least two versions of what happened. My child's, and what really happened. Sometimes they are close; sometimes not.

 

[DMF]

Is this Austin, Texas? Last I heard, APD was dash-cam taping all stops. IF the officer asked for permission. and IF the student denied him voluntary consent to search, leading to the officer stating - on tape - that he now had Probable Cause to search the vehicle, then this needs to be reported to APD IA as soon as possible . . .

. . . Be prepared, however, to find out that the stop maybe didn't go quite the way it was first relayed to you, though..

+1 on this. Especially the last part. Many people make claims, but are unwilling to follow through on a complaint because they know they've been distorting what really happened.

 

[DSRUPTV]

I am currently taking BLET (Basic Law Enfocement Training) courses. In North Carolina an officer can search a car if he has a reasonable suspicion that the occupant is a threat. "Reasonable suspicion" is considered to be much less than probable cause which is needed for arrest. For example factors such as time of day, location of the stop, residence of the driver (if they are far from home), and refusal to give consent to search can all lead to reasonable suspicion. However only one or two of these factors is not enough to establish "RS." On a saftey search the officer can only search the "lungeable area" of the occupants. This has been interprited by the courts to mean the passeger area of the car forward of the last row of seating. With a safety search the officer may only look in areas where a dangerous weapon could be hidden. For example not in a pill bottle the officer thinks may contain drugs. If contraband items are found in plain view and are "immediately recognizeable" (a bag of pot out on a seat) to the officer he may confiscate and arrest. This search is refered to as a car frisk most of the time.

 

[kikilee]

If I had a nickle for every parent who sailed into the office because their darling child gave them a heavily edited version of events, I'd have purchased a gun collection that would be the envy of every museum in the world.

Lawdog - How right you are. However, if I had a penny for every illegal search performed by law enforcement I could buy your collection and have enough left over to build a museum to house it.

 

[El Tejon]

kik, hah, I'll do you one better.

If I had a paper clip for every redacted version of a search, I could buy LawDog's collection and have a enough let early to train year round at TR, Gunsite, Blackwater, etc.

I'd be the Office Supply King of the Midwest.

Hint: it's just not the prosecution that REALLY wants to see and hear the carcam tape.

 

[Zrex]

Just a follow up on this. E-mailed my wife and asked her about this - here is her response:

I told him what we talked about and printed off the Austin thing. He said he was touched that I was concerned, but his dad was taking care of it now. He's a weasel and may have made the whole thing up to be a disruption in class, because he was adamant that I not follow up with this.

"The Austin thing" was the response from Lawdog about what to do if this happened in Austin.

 

[Augustwest]

After all, what loss did he suffer?

:banghead:

 

[Archie]

Pardon me butting in here, but...

DISRUPTV: For example factors such as time of day, location of the stop, residence of the driver (if they are far from home), and refusal to give consent to search can all lead to reasonable suspicion.

Absofreakinglutley wrong!
All searches, all searches, must be 'reasonable'. The required suspicion to search a vehicle is different than searching a building, including a home. However, a subject not waiving his rights under the Constitution can not ever be considered even a 'factor'.

I think you may have heard this wrong. If you got it right, either the state of North Carolina or the particular instructor involved is in violation of the U. S. Constitution and case law from the Supreme Court.

If you ever write such a thing in a report, or testify in court to that effect, put on some lipstick and kiss your case goodbye.

 

[DSRUPTV]

Absofreakinglutley wrong!

I think you might have jumped to a conclusion that I was not trying to present. That is simply one factor that can be presented as formation of reasonable suspicion, and would probably be considered weaker than other factors. It would certianly not be enough reason alone to perfom even a saftey search of a car. And this reasonable suspicion only pertains to whether or not the person may be a threat to the officer's saftey. The courts of North Carolina and similarly conservative states are generally very lienient in allowing officers to do a limited search for thier own protection. I would like to reiterate that this is only a limited search and does not include the trunk of a car or any engine compartment nor would it allow for looking behind door panels or the undercaridge. The officer is only allowed to look in the "lungeable area" of the driver and passengers. Is is the same principle that allows an officer to stop an individual to conduct a breif interview even if there is not enough probable cause to arrest that person. I would also like to add the fact that there must be a valid reason to stop the car in the first place. An officer is certianly not allowed to just stop a car and try to search it.