What constitutes probable cause?

[cassandrasdaddy]

i always tell em sure search the truck
serves em right. they ussually open the door and pass. truck looks like it was in a bad rollover and we just replaced the glass left debris where it lay.ussually they are trolling for booze or drugs in my neck of the woods. i tell em i gave em up after my last bad encounter couple decades ago.i'm of tghe opinion that attitude sets the tone and mine ussually disarms em. it did even back when i hadn't given it up

 

[HonorsDaddy]

cassandrasdaddy

some of us are a bit more um...shall we say...particular about the interior of our vehicles. Mine tend to look like they just rolled off the showroom floor even after years of ownership.

Either way - I still cannot think of a single situation in which I would allow a LEO to search my car or home without a warrant and I cannot imagine why anyone would consent to a search. The "if you have nothing to hide, you have nothing to fear" garbage is just that - garbage.

 

[4thPointOfContact]

As everyone has said; "Probable Cause" no longer enters into the picture once you have voluntarily given up your rights.

The only proper response to an officer's request to conduct a search, (note..'request') is "I do not voluntarily consent to this encounter. Am I free to go?"

Any action on the part of the officer after that will usually bring the legal definition of 'detention' into play.

 

[GEM]

http://www.aclu.org/FilesPDFs/dwb bust card7_04.pdf

 

[wdlsguy]

He took down our names and stuff, looked at our ID's, and was not happy upon finding my knife, which he told me was illegal.

Texas knife laws are somewhat convoluted. Whether it's legal to have a given knife on you depends on what it is (switchblade, "illegal" knife, knife) and where you are (on /off your own property, in / out of your own vehicle).

http://tlo2.tlc.state.tx.us/statutes/docs/PE/content/pdf/pe.010.00.000046.00.pdf

What kind of knife did you have and where was it? Does your school have a policy regarding knives on school premises?

 

[GlowinPontiac]

cant the cop just say that he smelled weed? had that happen several times when i was pulled over or sitting in a parking lot.
they never searched my car but couldnt they just say "i smell weed" and then they have probable cause? i mean how can you prove that the cop didnt smell weed?

 

[TexasSkyhawk]

Where in Texas did this happen?

He told me if he 'catches me again' then I can kiss my college hopes and stuff goodbye. Was he just trying to scare me?

This cop is a dickhead. He is also the reason I urge people to carry a small digital recorder with them in their cars and click it on to "record" the minute they see flashing lights in their rearview mirror.

I agree that the "If you don't have anything to hide, you don't have anything to fear" attitude is pure crap.

Jeff

 

[Mr White]

If he's just fishing, getting a warrant probably won't be worth his trouble. If he really wants to search your car and you refuse, all he has to do is write in his report that he "smelled what he believed to be the odor of marijuana. A search of the vehicle yielded no drugs, residue or pariphenalia."

If a cop really wants to search your car or home, he's gonna search it, one way or another.

 

[Treo]

There's actually a pretty good video on youtube about this it's called "Busted A Citizens Guide To Surviving An Encounter W/ The Police" I recomend it to anyone who's concerned about this

 

[Billy Mack]

An officer shouldn't just say that he smells weed unless he actually smelled it. Whether odor alone establishes PC to search depends on the state. Georgia has gone back and forth on that issue.

Officers don't need warrants to search cars. They can search cars for weapons based on reasonable suspicion. They can search for any other contraband or evidence based on probable cause.

I saw that busted video at a convention last year. For about 30 seconds, I thought it might make a good training video. Then the officer in the traffic stop scenario started violating the driver's Fourth Amendment rights. I'd get fired if I acted like that guy did.

 

[Mr White]

An officer shouldn't just say that he smells weed unless he actually smelled it. Whether odor alone establishes PC to search depends on the state. Georgia has gone back and forth on that issue.

No he shouldn't. But they do. And at least here in PA, it can work for them. If they find nothing, then its just an "oops, my bad. Maybe it was an odor from a passing car."

 

[Blacksmoke]

STRAKLE:
Your actions could not trigger a Probable Cause search of your car. The LEO acted under Reasonable Suspicion, a lesser standard.

First, any cop has the right to ask you what you are doing, provided the encounter is consenual and the question is aked without and implied threat or other intimidation. This is the common law right to inquire also known as the"Right to Ask a Question". It applies to LEOs along with everyone else. Forms of that question include "Where did you just come from?", "What are you doing here?", "May I search your car?" The test here is if a reasonable person felt they could answer in the negative and be free to leave the scene. If the LEO made any attempt to stop you from leaving or intimidated you into answering the question with an implied threat of further action or issued an order to you like "Stand over there" or "Open your coat", then this would have constituted a siezure of your person.

The next level of inquiry is the "Terry Stop" or a reasonable suspcion of criminal activity. Under this stanadard the LEO has to reasonable believe that you are enganged in criminal activity. Ordinarily, being parked in a parking lot would not be suspcious to a reasonable person. Being in a parking lot in a high crime area could be suspicious but is not enough to justify a search on its own. There has to be an accompanying fact like your furtive, nnervous, or otherwise suspicious behavior (I am not saying you did anyhting). A complaint by a neighbor could be the triping point IF there has been a hostory of called-in tips that proved to be correct.

The search has to be more than a hunch by the LEO. He has to be able to state clealy what his suspcions were and they must be derived from actual facts about the circumstances.

Third, Probable Cuase is the final level and i am sure you have an idea what that entails. If Probable Cause existed the LEO would have just ordered you against the car fora search of you and the car without further question.

The facts surrounding that location are going to be the key. The above is not my opinion it is from the "Legal Guidelines" section of New Mexico Criminal Law Manual..

 

[Dr. Tad Hussein Winslow]

Then he saw the bullet I wear on a chain around my neck (not live of course) and asked to search my car for guns. Is that seriously all it takes for probable cause to give him the right to search my car?

Absolutely NOT! A right to search means a right to do a NON-consensual search. If the cop ASKS to search, that means that he/she KNOWS that there is no probable cause/ no right to search. The appropriate answer is "not only no, but HELL NO!". But in a nice way. ("no thank you officer, you may NOT search").

Probable cause can be very complicated and books can be, and have been, written, covering the many thousands of circumstances which come up, cobbled together over the decades from thousands of court opinions. And the definition changes over time to an extent. It depends upon ALL the facts and circumstances. But I can tell you that right now, at least, sitting in a car, where you have a legal right to be, with a bullet necklace, is NOT probable cause that any crime has been committed!

As mentioned, reasonable suspicion was present, giving the officer a right to briefly detain and question (though you have a right to refuse to answer the questions).

Exercise your rights, folks. Unless you just have time to spare, don't let cops search just cause they feel like it, whether guilty or innocent - especially if innocent!

 

[Blacksmoke]

The cop is acting under the "Reasonable Suspicion" standard. He moved past the "Right to Ask a Question." If that location is a high crime spot and the cops got another in a series of accurate tips he may have been justified in bypassing the asking for permission to search. By asking for permission, he is lowering the requirements needed. This is a kind of insurance against accusations of unreasonablpeness on his part. Clearly, if the young man did not want to be bothered he should have declined.

If Strakle is a teenager then it could be argued that his mere encounter with the cop was intimidation enough to void acting under the Right to Ask a Question. In the old days, teenagers were generally compliant with LEOs and would never think to say "No." I do not know about today's standards.

 

[Ithaca37]

and asked to search my car for guns. Is that seriously all it takes for probable cause to give him the right to search my car?

He asked, therefore he had no probable cause. You gave him permission when he asked and therefore did nothign illegal. Contact your local ACLU (yes, I know they don't give a damn about the 2A) for materials about your rights in dealing with the police.

 

[Blacksmoke]

Ithica, again, the cop is acting on Reasonable Suspicion and not Probable Cuase. This is a major distinciton that we need to know about if there is a "problem" (arrest, indictment and trial) and we attempt to pursue the Exclusionary Rule on any evidence from the search. We also need to understand these distinctions if we wish to protect out rights when in contact with a cop.

It would be worthwhile, although tedious perhaps, to read the appropriate ciminal procedure sections of your state. Lexis Nexis is a source on-line and in print. There is a handbook on search and seizure intended for the LEOs but available to civilians for most states. It is a good idea to read one.

 

[TexasSkyhawk]

Here's what we learned in Quantico a long time ago.

If I stop Citizen for some reason and I don't like his/her attitude and I use the "Reasonable Suspicion standard" to initiate a search of Citizen's car--I may be in a world of legal hurt if I find nothing and Citizen complains to OPR.

Likewise, if I have reasonable suspicion that Citizen might be armed, let's say right here in Texas, and I use the "Reasonable Suspicion standard" to look for a weapon because I state I didn't feel Citizen was being honest when I asked, "Do you have any weapons on you or in your car?" and I find drugs or stolen merchandise. . . guess what?

That evidence is not admissable in MOST courtrooms because it was found under discovery rather than search. In other words, if I DID find weapons, and they were illegal for whatever reason, then those weapons could be entered as evidence. But if I found stolen TV sets, those could not be.

Had I had consent to search or a warrant--ANYTHING I found would be evidence.

Luckily or unluckily, drugs were our agency's thing and when we went after high-volume dealers, we made sure to get warrants. Always.

Another funny thing is that because we worked primarily "undercover," we got rousted by local cops so often it wasn't funny. The firsthand abuses and violations of Rights I've personally witnessed and been subjected to would scare the hell out of you.

It was always funny to have Barney throwing me against the car or wall and search me down because "we don't want people like you arond," find my concealed weapon then start calling for backup or telling me how much deep youknowhwat I was in or even better, how he "oughta just shoot my longhaired biker's ass."

But even funnier is when I'd tell the idiot to keep searching for some ID and he'd finally find my shield with the eagle on it and the credentials that read "United States of America." I then got to tell Barney how much deep youknowhwat HE was now in.

This kid here in my home state that wrote the original message, if he's being square with what he's saying, was the subject of nothing more than simple BS harassment. Period. And the cop that did that, again if the kid is being square, should be on unpaid leave for around thirty days with a notation in his file that if it happens again, he'll be terminated and then charged.

I have NO use for overbearing cops who are bullies. There are more than enough real bad guys out there for them to deal with rather than getting on power trips with otherwise honest citizens.

Jeff

 

[Blacksmoke]

Texaskyhawk, Wouldn't you agree that Reasonable Suspicion must be based upon something more than a hunch, something factual that can be dscribed and understood by a reasonable person who is not a part of the Criminal Justice System?

If you are a LEO and come in contact with another LEO, why would you not identify yourself since you are carrying your commission and a weapon on your person? Ofcourse, rule one in such an encounter is never argue with the cop on the frisk, save it for the investigator or the magistrate. As you so well depicted the LEO at the scene is not always acting with his best interests or yours, either, in mind all the time. THis is not a criticisim. This is a more dangerous world with more A$%&($#s around than in the past.

On the other hand, I am sure you learned at Quantico why local cops develop round shoulder and flat foreheads...

 

[pbearperry]

Why are so many folks here being stopped and harrased all the time?There is something wrong with this picture.You guys must live in a different country than me.I never get pulled over or asked questions.Could it be because I observe proper driving rules and laws,or is it because I don't dress like a Gansta?Could it be because I am not pissing people off?Something just does not seem right with all these run ins with the law?

 

[Mainsail]

I met with my girlfriend before school today in a parking lot, and some person called the cops on us. Not sure why, but apparently a car sitting in an empty parking lot is 'suspicious'.

The officer’s encounter was wrong from this point forward. If you were legally parked in a public lot (IOW, not trespassing) he had no reasonable suspicion that would warrant his contacting you, other than a simple welfare check.

Roll the window down a few inches, tell him you’re fine, and the encounter should be over right there. You should not have to show him any ID for merely sitting in a car. Your state law may very, and since you don’t give us a clue where this happened, we can only guess.

Allowing him to search your car was foolish. A couple Pseudofed or Brillo Pad left carelessly on the floor could signal that you’re making meth. An officer can divine all sorts of crime from everyday objects. It doesn’t matter if you have nothing to hide, its dumb to potentially throw your future away by letting an officer search your car.

 

[brighamr]

It doesn't matter how you dress, what your age is, the color of your skin, your gender, etc.

All people should be treated equally.

If an officer asks to search, follow Nancy Reagan's advice: "Just say NO"

 

[ilbob]

Sadly, the courts long ago accepted the idea that just about anything LE says is PC, is PC, as long as they use the right weasel words.

PC is not requried for a consenual search. Likely the cop was not looking for a gun but drugs or empty beer cans, or some other contraband. The bullet thing was just a dodge to get you to think that was what he was looking for, knowing that you almost certainly had none in the vehicle.

People need to learn to say NOTHING to police EVER when in this situation beyond the minimum required by law. And that is not much. Learn to say "I do not consent to any search of my person, vehicle, and/or domicile". That won't prevent always prevent unwarranted searches, but is a good start.

 

[graybeard321]

If you had nothing to hide, there is no reason not to let him search your car.

 

[Vermont]

If you had nothing to hide, there is no reason not to let him search your car.

It's an inconvenience. That's a good enough reason.


You never have to tell an officer that you consent to a search. If it is lawful for him to search, he will be able to do so with or without your consent.

 

[Mainsail]

If you had nothing to hide, there is no reason not to let him search your car.

You can never be 100% sure you don’t have something to hide. Like I said, all it takes is one innocently dropped Pseudofed package (or even the wrapper) on the floor, maybe a brillo pad in the trunk, or a powder scale you just bought at Cabela’s for reloading; and you could be needing an expensive lawyer to fight your innocence. If you lose, it’s jail time.

The stupidest thing any citizen can do is to foolishly believe the officer has your best interest in mind when he’s requesting to search your car. Do you seriously think he’s doing it to check for potential safety hazards for you and your family? No, he’s looking for a bullet-statement for his next appraisal, which means an arrest and conviction.