Interesting call from a student...

[Davek1977]

yes, there certainly IS an "automobile exception" to the 4th Amendment. However, that exception doersn't eliminate the requirement for PC (probable cause). It eliminates the requirement of a warrant to search for evidence that could easily be moved or destroyed by the time a warrant was issued. The Terry frisk only requires REASONABLE SUSPICION, a much lower standard than probable cause) that the subject is armed to frisk him and the areas within his immediate reach. Being handcuffed outside of the car eliminates the possibility he can reach for a gun in the center console or glovebox, making that line of reasoning null. Once he was removed from the car and could no longer access it, any search would have to meet the PC standard, not the reasonable suspicion standard. It doesn't make any sense that an officer is concerned about his safety if the potentially armed person is restrained in handcuffs. At that point, its no longer a frisk, but a search, and the officer darn well better have PC(that he can explain to the judge in detail), permission, or a warrant if he plans on using any of the fruits of that search. Otherwise, the handcuffed students rights were violated under the 4th Amendment. The search of the glovebox, console etc would be valid IF the subject has easy access to them....which, being handcuffed outside of the vehicle, he did not

 

[TexasRifleman]

Actually, in certain situations, anonymous calls ARE probable cause for searches.

1. If you call and say that so-and-so is a danger to themselves and is contemplating suicide via drug overdose, the cops can bust into their house to save them from themselves without permission.

2. If you see on TV a description of a car or person that the cops are looking for and then call the hotline and tell them you saw that car/person at such-and-such address, the cops will do a search of that house and will not ask permission.

Neither of those would likely stand in court. Cops may DO those things on occasion, as blarby says happened to him, but that doesn't make it legal. That's why any time this happens to someone they need to contact an attorney and seek remedy if the attorney believes it was improper. That's the only way to stop these kinds of abuses of power.

 

[avs11054]

yes, there certainly IS an "automobile exception" to the 4th Amendment. However, that exception doersn't eliminate the requirement for PC (probable cause). It eliminates the requirement of a warrant to search for evidence that could easily be moved or destroyed by the time a warrant was issued. The Terry frisk only requires REASONABLE SUSPICION, a much lower standard than probable cause) that the subject is armed to frisk him and the areas within his immediate reach. Being handcuffed outside of the car eliminates the possibility he can reach for a gun in the center console or glovebox, making that line of reasoning null. Once he was removed from the car and could no longer access it, any search would have to meet the PC standard, not the reasonable suspicion standard. It doesn't make any sense that an officer is concerned about his safety if the potentially armed person is restrained in handcuffs. At that point, its no longer a frisk, but a search, and the officer darn well better have PC(that he can explain to the judge in detail), permission, or a warrant if he plans on using any of the fruits of that search. Otherwise, the handcuffed students rights were violated under the 4th Amendment. The search of the glovebox, console etc would be valid IF the subject has easy access to them....which, being handcuffed outside of the vehicle, he did not

Officer's can definitely "frisk" a car once the occupants are removed. No police officer in his right mind would start looking for guns inside a car that is still occupied.

Also, numerous officers have been shot by handcuffed people, and plenty of people carry handcuff keys in their pockets. Being handcuffed outside a vehicle does not prevent entry to that vehicle, and the officers were still justified to frisk the accessible area.

Back to the OP's statement, my recomendation for your student is to tell him to keep his mouth shut and his fingers to himself when he is driving, especially if he is unarmed. Plenty of people have been killed over road rage incidents. He has no way of knowing whether or not the other person is armed.

 

[Remo223]

Neither of those would likely stand in court. Cops may DO those things on occasion, as blarby says happened to him, but that doesn't make it legal. That's why any time this happens to someone they need to contact an attorney and seek remedy if the attorney believes it was improper. That's the only way to stop these kinds of abuses of power.

It doesn't matter how legal or illegal it is if they find something illegal there when they do their search. In my first example, drugs were involved. If the cops think they will have a drug bust, they won't care about the possibillity of violating someone's rights. If the individual has small kids, they will be even more likely to risk it.

I didn't make these two examples up out of thin air. I know of one instance each when these examples happened and there was no lawsuit against the cops. Both times the cops found illegal narcotics.

Even though I am not in favor of drug use, I am beginning to believe drugs should be legalized because I think the law is using drug laws as an excuse to violate peoples' rights.

 

[zxcvbob]

Officer's can definitely "frisk" a car once the occupants are removed. No police officer in his right mind would start looking for guns inside a car that is still occupied.
Also, numerous officers have been shot by handcuffed people, and plenty of people carry handcuff keys in their pockets. Being handcuffed outside a vehicle does not prevent entry to that vehicle, and the officers were still justified to frisk the accessible area.

In other words, they can perform an illegal search because they know they'll get away with it.

 

[avs11054]

In other words, they can perform an illegal search because they know they'll get away with it.

illegal says who??? Not the supreme court.

 

[avs11054]

It doesn't matter how legal or illegal it is if they find something illegal there when they do their search. In my first example, drugs were involved. If the cops think they will have a drug bust, they won't care about the possibillity of violating someone's rights. If the individual has small kids, they will be even more likely to risk it.

I didn't make these two examples up out of thin air. I know of one instance each when these examples happened and there was no lawsuit against the cops. Both times the cops found illegal narcotics.

Even though I am not in favor of drug use, I am beginning to believe drugs should be legalized because I think the law is using drug laws as an excuse to violate peoples' rights.

just because the cops weren't sued, it does not mean what they did was legal. In regards to those two situations, I would say the first one might be a legal entry into the house, depending on the circumstances of the situation. The second scenario is definitely an illegal entry and there's plenty of case law to back that up.

 

[Aaron Baker]

I have to say that avs11054 is, unfortunately, right. I was thinking solely in terms of probable cause, and neglected to realize the expansive bounds that cops are given when doing a "frisk" for "officer safety."

I personally believe that it's just another erosion of our 4th Amendment rights. As was pointed out, a handcuffed person cannot currently access his "grab area" (as they called it in Chimel) and therefore doing a frisk of that area is illogical. I don't buy the "people carry handcuff keys" or "cops can be shot while someone is wearing cuffs" arguments. If the cop is alone, then he shouldn't be turning his back on a suspect to search anything. And if he's not alone, as he wasn't in the OP's scenario, then there's no risk. One cop can be watching the "perp" at all times.

I fail to see how a handcuffed person is going to regain access to their vehicle in order to grab a gun if the cops are doing their jobs correctly. So frisk the guy, but leave the car alone once the person is cuffed. Otherwise you're just using "officer safety" as a pretext for the violation of the 4th Amendment.

But, like I said, avs11054 is correct. The Supreme Court has upheld this BS.

On the other hand...

It doesn't matter how legal or illegal it is if they find something illegal there when they do their search.

This is just bull. Any cop who doesn't care to trample someone's right against an illegal search of their home in order to make a drug bust is a rookie who has never been to a suppression hearing. The exclusionary rule is exactly why the quoted statement is wrong. It DOES matter how legal a search is. If it's illegal, anything found will be suppressed and not entered into evidence. That means that the kilos of cocaine will never see the inside of a courtroom and the cops can't even say what they found. The "perp" walks. That's the protection afforded to criminals whose rights are violated.

My complaint is that there's no real protection for NON-criminals whose rights are violated. If a cop wastes your time with a bad search and finds nothing, then you don't end up in court and there's no evidence to suppress in order to teach that cop a lesson. You just have your time wasted and your rights violated.

It's a sad state of affairs.

Aaron

 

[withdrawn34]

. Lying to a police officer is a crime, too.

Strange how the opposite scenario is not illegal.

 

[Pigoutultra]

Since when is it illegal to lie to a police officer? If they ask you a non-crime related question and you refuse or lie, then what's the problem. If they ask if you committed a crime and you lie, you are protected by the 5th amendment. If they could prosecute you for lying that would be one heck of a slippery slope. Imagine a cop telling you, "Don't answer yes or no if you committed a crime. Did you rob this store?" that would force you to either lie or self-incriminate if you actually committed the crime.

 

[M-Cameron]

Since when is it illegal to lie to a police officer? If they ask you a non-crime related question and you refuse or lie, then what's the problem. If they ask if you committed a crime and you lie, you are protected by the 5th amendment. If they could prosecute you for lying that would be one heck of a slippery slope. Imagine a cop telling you, "Don't answer yes or no if you committed a crime. Did you rob this store?" that would force you to either lie or self-incriminate if you actually committed the crime.

its not the legal crime of lying they use against you.......they use it as a show of character.

as in, in court, they can say....." we have proof hes lied before, why should we trust him now" kind of routine

 

[Pigoutultra]

its not the legal crime of lying they use against you.......they use it as a show of character.

as in, in court, they can say....." we have proof hes lied before, why should we trust him now" kind of routine

I've never heard that argument standing in a criminal case. I'm sure it's used in civil cases all the time though.
I've seen and heard police lie and their character wasn't questioned in court.
And how can they prove you were lying about the crime if you are still on trial and you haven't been convicted yet?
Even if you lie about being at a certain place at a certain time in relation to a crime, you are still protected as you would potentially be incriminating yourself with evidence you were at the scene of the crime. The supreme court has held that it is reasonable for an innocent person to lie to the police in relation to a crime for fear of prosecution.

 

[M-Cameron]

I've never heard that argument standing in a criminal case. I'm sure it's used in civil cases all the time though.
I've seen and heard police lie and their character wasn't questioned in court.
And how can they prove you were lying about the crime if you are still on trial and you haven't been convicted yet?
Even if you lie about being at a certain place at a certain time in relation to a crime, you are still protected as you would potentially be incriminating yourself with evidence you were at the scene of the crime. The supreme court has held that it is reasonable for an innocent person to lie to the police in relation to a crime for fear of prosecution.

when they say, "everything you say can and will be used against you in the court of law"......they mean everything.

the 5th amendment gives you the right not to act as a witness against your self......it doesn't mean that what ever you say is not admissible in court.

 

[Pigoutultra]

when they say, "everything you say can and will be used against you in the court of law"......they mean everything.

the 5th amendment gives you the right not to act as a witness against your self......it doesn't mean that what ever you say is not admissible in court.

With that argument it is alright for the prosecution to bring into question in court your character if you decide to lawyer up. They could argue that an innocent person would have nothing to fear and wouldn't opt for a lawyer.
That would never hold in court because it is to be assumed that the charged is innocent until proven guilty and the assumption that they are guilty because they lied is a logical fallacy.

 

[M-Cameron]

With that argument it is alright for the prosecution to bring into question in court your character if you decide to lawyer up. They could argue that an innocent person would have nothing to fear and wouldn't opt for a lawyer.

oh believe me, im sure, somewhere....some scumbag lawyer has tried that before.

That would never hold in court because it is to be assumed that the charged is innocent until proven guilty and the assumption that they are guilty because they lied is a logical fallacy.

they dont use it as proof, they use it as evidence to support their case.....it brings into question the legitimacy of the defense


just the same way a foot print at a crime scene isnt proof the defense is guilty...

...you couple that footprint with a bloody knife they found, along with some bloody rags at their home........and then for good measure toss in some proof the defense has lied before......starts to look pretty convincing to the jury.


that is why every lawyer in history has always advised you to NEVER SAY ANYTHING.

 

[Pigoutultra]

I understand what you're saying about it being used as supporting evidence to convict. I thought you meant that it could be used as main evidence such as if you lied about being at the scene and they found video tape proving otherwise, they could assume that you lied about killing the person without other non-circumstantial evidence.

 

[M-Cameron]

I understand what you're saying about it being used as supporting evidence to convict. I thought you meant that it could be used as main evidence such as if you lied about being at the scene and they found video tape proving otherwise, they could assume that you lied about killing the person without other non-circumstantial evidence.

oh god no.......if that was the only evidence they had, the defense would be laughing their way out of the court room in a matter of minutes.

and this is the one thing i hate about the internet......its like a large game of Telephone........

 

[Pigoutultra]

I also understand that there is a fair amount of convictions based on nothing but circumstantial evidence due to one or more of the following: a bad defense lawyer, an ignorant and eager-to-believe-that-the-prosecutor-knows-best jury, a "tough on crime" judge and DA, and a prejudice against the accused. It is said that "it is better that 100 guilty men go free than one innocent be imprisoned"(paraphrased) and I agree with that. I am also a staunch supporter of jury nullification. If society is capable of seeing that a "crime in statue" isn't really a crime in the definition of the necessity that their be a victim, they should nullify.

 

[2000Yards]

Since when is it illegal to lie to a police officer?

Federal drug and terrorism cases are sometimes built on little more than a mountain of lies. That is correct - no other wrongdoing than lying to a Federal agent. A friend of mine, who is a Fed and assigned to a CT group, has spent years collecting people's lies, with no other evidence of wrongdoing (to be fair, sometimes those charges are used to leverage their cooperation - but sometimes not). You mentioned police, and state LEO powers will vary, but the Feds have 18 U.S.C. sec 1001, making it a "crime to: 1) knowingly and willfully; 2) make any materially false, fictitious or fraudulent statement or representation; 3) in any matter within the jurisdiction of the executive, legislative or judicial branch of the United States. Your lie does not even have to be made directly to an employee of the national government as long as it is "within the jurisdiction" of the ever expanding federal bureaucracy. Though the falsehood must be "material" this requirement is met if the statement has the "natural tendency to influence or [is] capable of influencing, the decision of the decisionmaking body to which it is addressed." United States v. Gaudin , 515 U.S. 506, 510 (1995). (In other words, it is not necessary to show that your particular lie ever really influenced anyone.) Although you must know that your statement is false at the time you make it in order to be guilty of this crime, you do not have to know that lying to the government is a crime or even that the matter you are lying about is "within the jurisdiction" of a government agency. United States v. Yermian , 468 U.S. 63, 69 (1984). For example, if you lie to your employer on your time and attendance records and, unbeknownst to you, he submits your records, along with those of other employees, to the federal government pursuant to some regulatory duty, you could be criminally liable. "

sourced from - http://library.findlaw.com/2004/May/11/147945.html

 

[sig220mw]

I have called the police before to report reckless driving and the response I got was that they had to witness it themselves and could not act on a phone call even though I did give them my name and address. The point the officer on the phone made to me was that I or anyone else could be lying in order to cause some one else a problem or embarrassment.

That certainly sounds like what happened in this case. Maybe different policies exist in different states or these particular police don't know the law or they have an anti-gun bias or their chief does.

I do know that a surprising number of police officers don't know nearly as much about the law as they should.

 

[Havegunjoe]

Police can lie, you cannot and therefore you can keep your mouth shut. That is the best course of action.

 

[Havegunjoe]

Interesting what everyone is saying. Just a couple of observations and facts. MY student didn’t know if the call was made anonymously or not. The police didn’t say. Second if the call was anonymous I would think that the police would follow and observe first instead of surrounding with multiple vehicles. It seemed to me to be an overreaction to the situation. My thought on this from the beginning was sans an independent witness to the incident it is a “he-said-she-said” situation and they did not have a legal right to search unless they happened to look in and see something that would warrant such a search. Last, lawyering up is not proof of guilt in any court I ever heard of, it’s a right. I would have exited the vehicle upon request, locked my doors and put the key in my pocket. Name, rank and serial number is all they get along with I don’t consent to any search of my person or vehicle, and I would have kept asking, “Can I go now”. If I am detained I would view that as an arrest and ask for a lawyer before any further questioning. I'm sure that would PO the police but so what?

 

[avs11054]

Interesting what everyone is saying. Just a couple of observations and facts. MY student didn’t know if the call was made anonymously or not. The police didn’t say. Second if the call was anonymous I would think that the police would follow and observe first instead of surrounding with multiple vehicles. It seemed to me to be an overreaction to the situation. My thought on this from the beginning was sans an independent witness to the incident it is a “he-said-she-said” situation and they did not have a legal right to search unless they happened to look in and see something that would warrant such a search. Last, lawyering up is not proof of guilt in any court I ever heard of, it’s a right. I would have exited the vehicle upon request, locked my doors and put the key in my pocket. Name, rank and serial number is all they get along with I don’t consent to any search of my person or vehicle, and I would have kept asking, “Can I go now”. If I am detained I would view that as an arrest and ask for a lawyer before any further questioning. I'm sure that would PO the police but so what?

Without a gun (maybe), admission of guilt by your student, or an independent witness, there's definitely not probable cause to arrest your student. That being said, exiting the car, locking the doors, and keeping the keys does and will not prevent the officers from frisking the area within arms reach of where your student was sitting. As stated earlier, people carry handcuff keys and cops have been shot by handcuffed prisoners. For those reasons, just merely handcuffing your student and sitting him on the curb does not necissarily prevent him from accessing the passenger compartment of the car. ESPECIALLY if he still has the car keys in his possession.
None of us were there, so we can only guess as to how much of a search or frisk the officers did.

Right or wrong, the supreme court currently allows officers to frisk a car for weapons, and a call of a road rage situation where somebody pointed a gun at someone else definitely would warrant a frisk of the car.

 

[JDBoardman]

Lets take this scenario a little further. Under what right does the TSA have to search me, my bags or my possessions? I understand that there is federal regulation that establishes the TSA, and mandates the search to "prevent" hijacking. However, the Constitution not only prohibits "unreasonable search and seizure", but the presumptive action that everyone who evidences desire to board an airliner is a possible hijacker, and will act as such unless stopped before he can act violates the concept of "innocent until proven guilty". And the fact that SCOTUS has upheld it doesn't make it either right or valid - witness, for example, Dred Scott or "Separate but Equal". SCOTUS overturns previous decisions not infrequently. Hence the Lefty Senators' concern for Stare Decisis.

Now prior to the establishment of the TSA and Federal usurpation of airport security, it could be argued that I had entered into a contractural agreement with the airline; and that part of the contract for carriage was implied consent to search of my person, papers and property. There is no 4th Amendment issue - UNTIL the Feds step in. Then that 220 year-old piece of parchment takes effect, and my rights should become supreme. But our benevolent government has decided, don'tcha know, that us peasants must be protected against our wills and through whatever invasive tactics the overloards deem necessary. Ever since United Flight 93, my money is on the passengers.

 

[Davek1977]

Actually, you STILL have a choice on whether to fly or not. No search is being "forced" upon you. If you don't want the search, you don't fly. While it could be argued that in today's world air travel is necessary, ultimately YOU have a CHOICE on whether to utilize air transportation, or to travel in a manner that doesn't require such stringent security. If you were being FORCED to travel by air, that would be one thing, but at this point, getting on an airplane is voluntary, and you agree to the terms when you buy your ticket. Its really not much different than being wanded or patted down entering a concert venue or club. You don't HAVE to be there, but if you choose to, you are agreeing to abide by the security arrangements in place