Interesting call from a student...

[Havegunjoe]

Seems he was on his way home from the National Guard when he got into a bit of an altercation with another driver. Flipped each other the bird and called each other names then went on his way only to be followed by the other driver for awhile. (Yes I told him he should not have exchanged words to begin with, he should have just driven off since no damage was done. That was covered in class too but apparently in the heat of the moment he forgot.) After awhile he turns off and the other guy drives on. Soon he is surrounded by cop cars and is ordered out of his truck. The other guy apparently called the cops and reported he threatened him with a gun. Cops asked if he was carrying which he wasn't. Asked if he had one in the truck which he didn't. They cuff him and proceed to search his truck and find nothing. No permission was asked for or received. Eventually send him on his way. I told him he should call the police and find out if they charged the other drive as he apparently made a false report.

 

[Nushif]

He definitely should. Lying to a police officer is a crime, too.

 

[AirForceShooter]

I'd be in the cop shop asking to see the CO.
Warrantless search? Cuffed?

Let's see the field report.

Don't do a formal complaint. Unless the CO tells you to go pound sand

AFS

 

[Hamilton Felix]

Yes, terrible harm, up to and including attacks by SWAT teams, can be caused by false reports. And the one making up the lies seldom suffers at all.

I can't help wondering: What if someone made that false report about me; I DO carry when driving. How would I convince the cops I never showed my gun to the other driver? They will always want to believe the worst, and if the other guy is a convincing liar, where would that leave me? Never mind that I don't get into namecalling contests or rude gestures (well, not in a couple of decades, anyway).

The very least a false accusation will accomplish is to put you into a situation where you may very well be killed by gung-ho Enforcers, who have been made edgy by the report (and they will not suffer for it).

 

[DustyVermonter]

Sounds like something that would happen to me, except I would have had my gun on me so in this case I would have made it verbally apparent that I would not consent to a search and after being cuffed would be practicing my right to remain silent because at that point, they obviously got it all wrong and its time to lawyer up.

BTW, here in Vermont I'm pretty sure brandishing a firearm is like a $15 fine or something like that.

I would definitely instruct this fellow to follow this up with the PD, sounds like his rights were non-existent at the mention (false accusation) of a firearm being involved.

 

[kingpin008]

Warrantless search? Cuffed?

I would think that a report of a gun being brandished would provide sufficient probable cause for a car search.

 

[txhoghunter]

I would think that a report of a gun being brandished would provide sufficient probable cause for a car search.

It does. Which is another reason false police reports are crimes. You are causing the police to infringe the rights of others when they have not broken the law, thereby, you are infringing on their rights.

 

[InkEd]

Inquire if the other individual was charged with filing a false report. And request a written and signed letter of apology from the police department. Neither will probably happen BUT at least you will have tried to make things right.

 

[kingpin008]

And request a written and signed letter of apology from the police department.

You've gotta be joking.

Look - If the police are called to respond to a call of a man in a car brandishing a firearm, it makes sense for the responding officer to search the car for said firearm. Probable cause, and all that. There is ZERO reason to expect an apology from an officer for doing exactly what his job requires of him.

 

[BENBRU]

I agree with the above that there is no reason to expect an apology from the PD. The apology should come in the form of prosecuting the false statement made by the "victim."

Another route might be to seek civil action... probably would take quite a bit of time and would probably involve paying an attorney. I wouldn't but hey... I think he could.

Allowing these kinds of things to happen and to go unpunished will continue to make it ok. Keep us updated if your student does decide to take action.

 

[Aaron Baker]

Probable cause, and all that.

If there's probable cause in this situation, I need to go back to law school.

An anonymous report with no corroborating information does not equal probable cause. Probable cause to believe what?

Just because a person calls and says that another driver showed/pointed a gun at them, does not mean that if you find that car, you have probable cause to believe that the person actually possesses a gun. It's NOT probable cause precisely because there is nothing to corroborate.

It seems like people here think that just because a gun was mentioned, that's automatically going to give the police probable cause to search. God help us if it is.

The guy should definitely file a complaint. Had he been injured/had property damage in any way because of this search, he would be within his rights to sue the police department in question.

Aaron

 

[M-Cameron]

I can't help wondering: What if someone made that false report about me; I DO carry when driving. How would I convince the cops I never showed my gun to the other driver? They will always want to believe the worst, and if the other guy is a convincing liar, where would that leave me? Never mind that I don't get into namecalling contests or rude gestures (well, not in a couple of decades, anyway).

im kind of wondering the same thing myself.......

now chances are you would most likely be arrested.........but does any one know what would happen after that?

.....now in most states you are innocent until proven guilty......and i cant help but think this would turn into a 'he said, she said' situation.........so would this ultimately boil down to what mood the judge is in that day?

 

[TexasRifleman]

If there's probable cause in this situation, I need to go back to law school.

An anonymous report with no corroborating information does not equal probable cause. Probable cause to believe what?

I didn't go to law school at all but I agree, there doesn't seem to be probable cause for a search here. If that had happened to me I'd be looking for some kind of remedy.

If anonymous calls were probable cause for warrantless searches we'd be in big trouble, and you'd read about it daily in the news.

 

[ljnowell]

If there's probable cause in this situation, I need to go back to law school.

How do you know it was an anonymous report? If the person gave a name and info and claimed that someone pointed a gun at them, why wouldnt there be probable cause to search?

 

[GRIZ22]

An anonymous report with no corroborating information does not equal probable cause. Probable cause to believe what?

There is nothing in the OP that says it was reported anonymously. The guy apparently told the police who he was and made the report. Search w/o warrant would be appropriate in those circumstances.

 

[Remo223]

I didn't go to law school at all but I agree, there doesn't seem to be probable cause for a search here. If that had happened to me I'd be looking for some kind of remedy.

If anonymous calls were probable cause for warrantless searches we'd be in big trouble, and you'd read about it daily in the news.

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.

 

[M-Cameron]

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.

ok, i am almost certain that is against the law.

there may well be a mass murder in a house, and the police are 100% certain they are in there.....they cant go in without a warrant.



now i am not certain....but i believe the only time police are allowed in a home/ car/ property without a warrant is if someones life is in eminent danger.

 

[Aaron Baker]

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.

Like I said, maybe I should go back to law school. But just in case, why don't you go ahead and cite me any cases where those types of warrantless searches were upheld.

In the first situation, they will knock on the door first and speak to the person and ask for consent to come in. However, absent a warrant and something more than someone's say-so, they're not legally allowed to just bust the door down.

In the second situation, they can only search the house with a warrant. And during the short period that I was a judge, I would need more than just "a citizen called and said so-and-so/this car was at this house" before I would have issued a search warrant. I want corroboration.

As to the question about anonymous versus non-anonymous reports, there's a whole line of case law about how much weight to give citizen complaints in determining probable cause. Anonymous reports are given very little weight at all, whereas complaints from non-criminal citizens are given more weight, but you still generally need some amount of independent corroboration before you can get a warrant.

In my opinion, part of the problem with our legal system is that the only thing keeping the police from violating the 4th amendment rights of citizens is the exclusionary rule (and much more dimly, the threat of a Section 1983 federal lawsuit). If they don't discover anything illegal in an illegal search, then there's nothing to exclude from evidence in court, and therefore there's no penalty for the cops that trampled all over a citizen's rights.

That's plain wrong.

Aaron

 

[blarby]

"now i am not certain....but i believe the only time police are allowed in a home/ car/ property without a warrant is if someones life is in eminent danger."

That is true- but the power in my eyes is questionable at best... I give my personal example :

I walked out of a shower once to a living-room full of policemen wanting to know why my stereo was so loud, and rifling and in fact seizing my property.

Their assertion was that I may have been being held hostage or injured, and that was the only way I might have had to notify them.

When I asked how long they had been there, and was informed in excess of 5 minutes- but had not reached the second door on the right ( my bathroom ) but had time to secure property they considered objectionable is when it got heated. Me finding them and not the other way around led to a CO getting involved, to no avail.

End result, no charges were ultimately filed, however property was not returned.

No, it (property) was not narcotics or of a heinous nature.

No remedy. They do what they want, often with the backing of the bench in their jurisdiction.

 

[Aaron Baker]

And Blarby's situation is why the 4th Amendment needs more teeth.

Since you were damaged (unreturned property) and since their entry was unlawful, you could file a federal lawsuit under Section 1983. However, is it worth suing someone for what is probably a small amount of damages just to make the point that the police shouldn't be violating your rights? Probably not.

There are plenty of good cops out there, but the bad ones who don't know the law and violate people's Constitutional rights in the name of public safety are the ones that give cops a bad reputation.

Aaron

 

[medalguy]

This is just another really good reason to keep your fingers (and other body parts) to yourself.

 

[Diggers]

I'm suprised they didn't just ask to look in the cab of the truck. 99% of people out there would allow the search in that situation.

The police in this situation really must not be very well trained because if there was a gun they would of blown the case with a bad search....interesting.

I do wonder if they had the reporting parties true name and info...I'm betting they didn't so they just went ahead and searched with hopes they could fine something.

The cuffing part is pretty standard OP these days for an individual who could be dangerous.

 

[avs11054]

If there's probable cause in this situation, I need to go back to law school.

An anonymous report with no corroborating information does not equal probable cause. Probable cause to believe what?

Just because a person calls and says that another driver showed/pointed a gun at them, does not mean that if you find that car, you have probable cause to believe that the person actually possesses a gun. It's NOT probable cause precisely because there is nothing to corroborate.

It seems like people here think that just because a gun was mentioned, that's automatically going to give the police probable cause to search. God help us if it is.

The guy should definitely file a complaint. Had he been injured/had property damage in any way because of this search, he would be within his rights to sue the police department in question.

Aaron

First, OP says nothing about the call being anonymous.

Second, "probable cause" to search the car just based on the story presented in the OP...definitely not. But there is definitely reasonable suspicion to "frisk" the accessible area to where the student was sitting in the vehicle.

None of us were there, so we can't be sure of what exactly happened, but the cops cuffing the student, and then looking under his seat, in the console, in the glove box, etc, could be seen as a "search" to the student, when in reality, it was a "frisk" of his accessible area.

 

[Davek1977]

Probable cause, as many have already stated, has to meet certain standards. The police cannot randomly search any house they have a tip a wanted person may be in just on general principal. They can "knock and talk" hoping to gain permission, or they can get a warrant. They cannot just barge in becasue someone told them a criminal was hiding on the premises. The 4th Amendment protects us against such unreasonable searches, and a "tip" does NOT meet the standard necessary for probable cause. While INFORMANTS...with ESTABLISHED HISTORY....can provide info to police that can CONTRIBUTE to their probable cause, an anonymous tip...or ANY tip.... from a random person the police have no reason to either believe nor disbelieve, in and of its own, does NOT meet the standards of probable cause and no judge in his right mind would issue a warrant on hearsay alone. Anonymous tips and the like can CONTRIBUTE to probable cause, but they absolutely do NOT CREATE it in and of themselves. Remo's information is, as pointed out, erroneous, as is Kingpins. Both show a marked misunderstanding of what it takes to actually have probable cause in the real world. Tips, without any sort of collaboration or supporting facts, does not equal probable cause and for good reason.

(no I'm not a lawyer, but I do have a BA in Criminal Justice, and spend many nights a year at a Holiday Inn Express!!)

 

[Diggers]

Yes it's not sensible to think a tip, and especially an anonymous tip, is enough for PC to search. If that were the case then the police could basically search anything any time. “Hey we got an anonymous tip that there are illegal guns here. Open up we are coming in.”

HOWEVER, do keep in mind that the student was in a car and not a house. That does make a difference in the eyes of the law as to how much privacy a person can expect.

What avs11054 said is very true. An officer can search “frisk” the person and the area with in arms reach they had occupied for weapons if the officer has reason to feel threatened by that individual. This situation certainly qualifies for the frisk of the inside of the vehicle where a gun could have been hidden. It does not qualify the trunk of a car or anything in the bed of a truck.