POLITICS - SCOTUS, police may search even if arrest invalid

[WCF3030]

I'm not sure how I feel about this one.
Certainly the crack dealer should get time.

http://news.yahoo.com/s/ap/20080423/ap_ ... tus_search

[Old Ironsights]

[Blaine]

I'm not sure either........ Once they secured the scene, could they not have gone back and amended the warrent to include the newly found crime?

[ScottT]

Guys, this is not anything new. Also nothing to get concerned about, nobody's rights were trampled on.

The Constitution prohibits "unreasonable" searches, but that does not mean that all searches without a warrant are "unreasonable." On the contrary, most searches are carried out without a warrant.

The Supreme Court is simply confirming the state of the law as it has been for a very long time. I am surprised that such a novel argument went all the way to the Court, but not surprised by the outcome.

[ScottT]

I'm not sure either........ Once they secured the scene, could they not have gone back and amended the warrent to include the newly found crime?

Once you are there, and you have contraband, there is no reason to go back and seek a warrant. Cocaine is contraband, no amount of it is legal to possess. Therefore, when they found the Cocaine, it was over.

[El Mac]

Careful now Scott. Don't let logic get in the way of good ranting...

[Old Ironsights]

I'm not sure either........ Once they secured the scene, could they not have gone back and amended the warrent to include the newly found crime?

Once you are there, and you have contraband, there is no reason to go back and seek a warrant. Cocaine is contraband, no amount of it is legal to possess. Therefore, when they found the Cocaine, it was over.

How did they find the contraband? Was it visible, or was a body/vehicular search required? It seems from the reports that the latter is the case.

The question is - given the class of inital charge and the normal procedure involved, i.e. issue summons for a court date and release - why was he searched at all?

What gave them the probable cause for a search? I mean, if I fail to use my blinkers for a turn, does that give the police the "right" to search me?

Sure, I may be due a traffic ticket & summons, but where is the probable cause for a search?

[Blaine]

Careful now Scott. Don't let logic get in the way of good ranting...

If increasing my knowledge base is ranting, I admit so proudly, Sir. Also, I don't believe logic has anything to do with laws or law enforcment.....

[WCF3030]

Careful now Scott. Don't let logic get in the way of good ranting...

I think your jumping the gun there a little mac, this is far from a rant.

I put this out there because I was unclear on exactly what SCOTUS ruled on, and how that is interpreted in the 4th Amendment.

I too do not get how this case made it to the top, seems like a done deal.

[ScottT]

Let's go through some typical situations where no warrant is needed:

Traffic stop, driver is arrested, and taken to jail. The officer should search the entire car for inventory purposes, he is now responsible. In that inventory search, if he finds contraband, charges may be filed for the possession of that contraband. (This is what appeared to happen in the cited case) Now, in Texas, you can be placed in jail for allmost all traffic violations, with the exceptions of no insurance and speeding within certain limits. In Texas, driving with a suspended license will earn you a trip to jail as it is no longer a minor (class C) offense. Apparently things are different in Va. But I wonder why the state would suspend your license and still let you drive????

Traffic stop with no arrest In this case, the courts have held that the officer can search the area in which the suspect has immediate access for weapons. If the officer comes up with contraband, and was not beyond the search parameters for possible weapons, bad guy goes to jail. Then, the officer can do a full search of the rest of the vehicle pursuant to the inventory search above.

Terry stop Officer approches someone on the street to talk to him and there is suspicion of a crime. The officer has a right to pat the person down for weapons for his own protection. He can investigate further if something feels suspicious. If he finds contraband, the bad guy goes to jail.

Plain sight. The officer is in a place he has a right to be, and he sees contraband in plain sight, the person in possession can be charged with it. This is not uncommon in a domestic violence call. The officer is called to the house, he is admitted to investigate the call (has a right to be there) and contraband is on the kitchen table. Happens all the time because some folks just don't have their act together.

All of these searches are reasonable, and all without the necessity of a warrant or probable cause. I don't think that folks are ranting here, but most of the exceptions to the necessity of a warrant are based on common sense. None of these particular examples gives a reasonable opportunity or necessity to go get a warrant.

[Blaine]

Appreciate the info, Sir......

[Dastook]

Let's go through some typical situations where no warrant is needed:

Traffic stop, driver is arrested, and taken to jail. The officer should search the entire car for inventory purposes, he is now responsible. In that inventory search, if he finds contraband, charges may be filed for the possession of that contraband. (This is what appeared to happen in the cited case) Now, in Texas, you can be placed in jail for allmost all traffic violations, with the exceptions of no insurance and speeding within certain limits. In Texas, driving with a suspended license will earn you a trip to jail as it is no longer a minor (class C) offense. Apparently things are different in Va. But I wonder why the state would suspend your license and still let you drive????

Traffic stop with no arrest In this case, the courts have held that the officer can search the area in which the suspect has immediate access for weapons. If the officer comes up with contraband, and was not beyond the search parameters for possible weapons, bad guy goes to jail. Then, the officer can do a full search of the rest of the vehicle pursuant to the inventory search above.

Terry stop Officer approches someone on the street to talk to him and there is suspicion of a crime. The officer has a right to pat the person down for weapons for his own protection. He can investigate further if something feels suspicious. If he finds contraband, the bad guy goes to jail.

Plain sight. The officer is in a place he has a right to be, and he sees contraband in plain sight, the person in possession can be charged with it. This is not uncommon in a domestic violence call. The officer is called to the house, he is admitted to investigate the call (has a right to be there) and contraband is on the kitchen table. Happens all the time because some folks just don't have their act together.

All of these searches are reasonable, and all without the necessity of a warrant or probable cause. I don't think that folks are ranting here, but most of the exceptions to the necessity of a warrant are based on common sense. None of these particular examples gives a reasonable opportunity or necessity to go get a warrant.

My Gosh!! After reading this I am P.O'd. I am sorry, if I have a faulty tail light this does not give an officer the right to search my car. If I am walking down the street minding my own business, an officer does not have the right to come and pat me down under the guise of "suspicion" that is much too broad and too big a door to walk through. No wonder I am getting more and more suspicious of the over use of police authority. I guess I am naive but I thought when you were pulled over for a violation they could only search your car if they saw something that was in plain sight that would constitute a search. Or they had evidence you had committed a crime. Otherwise they must ask for consent. If consent is not granted they can hold the car and wait for a warrant. Does this also mean that if a purse is snatched on the street you are walking down the police have the right to pat everyone down. I sure hope not, or we are worse off than I thought. Help me out here!!!

[BruceB]

If detectives are making a traffic stop, you can bet there was something else going on. Considering the inaccuracy of most news reporting, I'll bet there is a lot more to this story than what' been reported.
What always fascinates me about these types of threads is how readily the posters will accept the news reports as 100% true and accurate, yet when the media reports on anything to do with guns, they'll scream about how false and biased the reporting is.

[El Mac]

Careful now Scott. Don't let logic get in the way of good ranting...

If increasing my knowledge base is ranting, I admit so proudly, Sir. Also, I don't believe logic has anything to do with laws or law enforcment.....

You were never in question Sir.

[Old Time Hunter]

Dastook, I'm with ya. Then again I'm kind of a anarchist at heart and shun any and all that think they have authority. But, my head says that since I can not trust my neighbor to do the right thing, we need a cop to straighten him out.

I think there used to be a "Plain sight" rule or law, wonder what happened to that? Probably went away with the privacy rights, or when we get the National ID card, or maybe we won't need it once we are all implanted with a RID chip.

Paranoia...gotta love it

[Ridgerunner]

An officer MAY arrest under Virginia Law for driving under suspension IF the judges of the jurisdiction have so authorized it in lieu of a summons. I know the City of Virginia Beach has such authorization, but I do not know about Portsmouth. See the 3rd paragraph.

§ 46.2-936. Arrest for misdemeanor; release on summons and promise to appear; right to demand hearing immediately or within twenty-four hours; issuance of warrant on request of officer for violations of §§ 46.2-301 and 46.2-302; refusal to promise to appear; violations.

Whenever any person is detained by or in the custody of an arresting officer, including an arrest on a warrant, for a violation of any provision of this title punishable as a misdemeanor, the arresting officer shall, except as otherwise provided in § 46.2-940, take the name and address of such person and the license number of his motor vehicle and issue a summons or otherwise notify him in writing to appear at a time and place to be specified in such summons or notice. Such time shall be at least five days after such arrest unless the person arrested demands an earlier hearing. Such person shall, if he so desires, have a right to an immediate hearing, or a hearing within twenty-four hours at a convenient hour, before a court having jurisdiction under this title within the county, city, or town wherein such offense was committed. Upon the giving by such person of his written promise to appear at such time and place, the officer shall forthwith release him from custody.

Notwithstanding the foregoing provisions of this section, if prior general approval has been granted by order of the general district court for the use of this section in cases involving violations of §§ 46.2-301 and 46.2-302, the arresting officer may take the person before the appropriate judicial officer of the county or city in which the violation occurred and make oath as to the offense and request issuance of a warrant. If a warrant is issued, the judicial officer shall proceed in accordance with the provisions of Article 1 (§ 19.2-119 et seq.) of Chapter 9 of Title 19.2.

Notwithstanding any other provision of this section, in cases involving a violation of § 46.2-341.24 or § 46.2-341.31, the arresting officer shall take the person before a magistrate as provided in §§ 46.2-341.26:2 and 46.2-341.26:3. The magistrate may issue either a summons or a warrant as he shall deem proper.

Any person refusing to give such written promise to appear under the provisions of this section shall be taken immediately by the arresting officer before a magistrate or other issuing officer having jurisdiction who shall proceed according to the provisions of § 46.2-940.

Any person who willfully violates his written promise to appear, given in accordance with this section, shall be treated in accordance with the provisions of § 46.2-938.

Any officer violating any of the provisions of this section shall be guilty of misconduct in office and subject to removal therefrom upon complaint filed by any person in a court of competent jurisdiction. This section shall not be construed to limit the removal of a law-enforcement officer for other misconduct in office.

(Code 1950, § 46-193; 1950, p. 94; 1954, c. 174; 1958, c. 541, § 46.1-178; 1972, c. 477; 1975, c. 191; 1981, c. 382; 1983, c. 458; 1989, c. 727; 1990, c. 218; 1992, c. 830; 1999, cc. 829, 846.)


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[Buffboy]

Scott has it right. All the scenarios he stated have been the law of the land for quite some time. None are very recent. IIRC the "Terry Pat" dates from the 50s, though there's newer law that refined it, that's what it's still called. The Terry Pat is just that, a light pat for obvious weapons, it isn't a full search, no pockets are turned out. All these searches have their limits as to how they are applied. Legally, as a cop, I can't just walk up to anybody and search them, even the "Terry Pat" for weapons. In court, I would have to articulate reasonable suspicion for any of them and that applies to all the "searches" that don't fall under the 4th amendment. I was taught "use this case law, appropriately, or it's gone".

Dastook's analogy is inaccurate for a police officer. If someone did what he suggested , remember the innocent far outnumber the guilty, it would destroy his credibility in court. It would not only be an ineffective way to do police work, again, the (now) righteously irritated innocent far outnumber the guilty, they would bankrupt him from lawsuits.

As to the original link, it seems to me this case was more about a state law overriding federal case law guidelines for search/seizure than law enforcement search doctrine itself.

[Dastook]

Buffboy wrote:

"Dastook's analogy is inaccurate for a police officer. If someone did what he suggested , remember the innocent far outnumber the guilty, it would destroy his credibility in court. It would not only be an ineffective way to do police work, again, the (now) righteously irritated innocent far outnumber the guilty, they would bankrupt him from lawsuits."


I think not. Just look at what happened in La. after Katrina with the illegal gun confiscation. I read every week about law abiding people who have broken no law except for minor traffic violations and have there guns taken away from their cars. Most of the time they get them back after sometimes years, after they find the officer over stepped his boundaries by taking them. I worry about this a lot. I travel for business in my car in about 20 states constantly. I have a CCP that has reciprocity in all the states I travel in. But so did many of the people that have the problems I stated above. Don't get me wrong. I have all the respect in the world for the LEO's. It is a problem with a small number of inadequately trained and some overzealous individuals. I truly am confused as to what my rights are if I am pulled over. I am not being sarcastic. However you put it "righteously irritated", there in lies the problem. As far as I am concerned if my civil rights, or the civil rights of an other innocent are trampled on because it appeases the masses, that is a ridiculous and very scary attitude that proves my point.

[ScottT]

Wow, such paranoia!

And the Court said nothing new. I was doing all of this 30 years ago.

I suppose I just don't get that concerned. I have never been arrested, I don't break the law and I don't worry about it.

Now, if I was carrying around something that I should not be, or if I were a dope fiend, then I would get paranoid too. Other than that, not so much.

Innocent persons having their rights trampled? This worthless thing was in possession of crack cocain.....not exactly an innocent.

What folks don't seem to realize is that nobody thinks you are that important. Cops don't even know you exist any more than anyone else does. You have to do something to even get on the radar screen.

[Dastook]

Wow, such paranoia!

And the Court said nothing new. I was doing all of this 30 years ago.

I suppose I just don't get that concerned. I have never been arrested, I don't break the law and I don't worry about it.

Now, if I was carrying around something that I should not be, or if I were a dope fiend, then I would get paranoid too. Other than that, not so much.

Innocent persons having their rights trampled? This worthless thing was in possession of crack cocain.....not exactly an innocent.

I am not siding with the scum in this article. I know the search was legal. I am referencing the law as you wrote it and the concearns I worry about when I am doing nothing wrong except a minor traffic stop. What rights do I have as far as a search is concearned?

[Sarge]

The language used by Warren in this case is as unambiguous as it can be-

We merely hold today
that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot

and

that the persons with whom he is dealing may be armed

and

presently dangerous,

where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries,

and

where nothing in the initial stages of the encounter serves to
dispel his reasonable fear for his own or other's safety,

he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons

in an attempt to discover weapons which might have been used to assault him.

http://law.jrank.org/pages/13012/Terry-v-Ohio.html

[ScottT]

Wow, such paranoia!

And the Court said nothing new. I was doing all of this 30 years ago.

I suppose I just don't get that concerned. I have never been arrested, I don't break the law and I don't worry about it.

Now, if I was carrying around something that I should not be, or if I were a dope fiend, then I would get paranoid too. Other than that, not so much.

Innocent persons having their rights trampled? This worthless thing was in possession of crack cocain.....not exactly an innocent.

I am not siding with the scum in this article. I know the search was legal. I am referencing the law as you wrote it and the concearns I worry about when I am doing nothing wrong except a minor traffic stop. What rights do I have as far as a search is concearned?

The same as any other person in the country. The same as God endowed you with from the moment of your birth. Rights don't come from government, they just are.

But, your rights are not infinite. If an officer pats you down of a Terry style stop, it is only to protect his rights to keep you from shooting him. The search of the car is limited, again to what is reasonable to protect the officer, nothing more. The inventory search is also to protect the officer, the detainee and the department.

In each and every one of my examples, think about what was present.....contraband. Something that by its very nature is illegal to own or posess.

[Dastook]

Wow, such paranoia!

And the Court said nothing new. I was doing all of this 30 years ago.

I suppose I just don't get that concerned. I have never been arrested, I don't break the law and I don't worry about it.

Now, if I was carrying around something that I should not be, or if I were a dope fiend, then I would get paranoid too. Other than that, not so much.

Innocent persons having their rights trampled? This worthless thing was in possession of crack cocain.....not exactly an innocent.

I am not siding with the scum in this article. I know the search was legal. I am referencing the law as you wrote it and the concearns I worry about when I am doing nothing wrong except a minor traffic stop. What rights do I have as far as a search is concearned?

The same as any other person in the country. The same as God endowed you with from the moment of your birth. Rights don't come from government, they just are.

But, your rights are not infinite. If an officer pats you down of a Terry style stop, it is only to protect his rights to keep you from shooting him. The search of the car is limited, again to what is reasonable to protect the officer, nothing more. The inventory search is also to protect the officer, the detainee and the department.

In each and every one of my examples, think about what was present.....contraband. Something that by its very nature is illegal to own or posess.

Yes, I understand all that, but is the contraband visable? Or was it found after the search? Can he just search on a hunch or does he have to have real evedence?

[Charles]

Just for the record, what SCOTUS decided was good Texas and Federal search and seasure low 40 years ago, when I was a kid lawyer doing Criminal Law. I promise you that anybody who does criminal law on either side of the bar knows 4th Amendment law backward and forwards.

Persuant to a traffic stop, a LEO can search the person of the driver and passenger, and any place in the vehicle accessable to the driver and passenger for weapons to ensure the safety of the officer.

Anything found in that search is fair game.

SCOTUS just brought Virginia into line with what has been the law everywhere else for at least 40 years maybe much, much longer.

Sometimes you boys let your paranoia streak show.

[Old Time Hunter]

So why can't a civilian protect him or herself by ascertaining the intent of the officer? Seems fair to me....

Since I NEVER do anything wrong, if I am stopped for any reason, by anyone, of course I would believe that there is criminal intent by the person stopping me.

Sorry Dastook, love the idea of a fair, free society...but it would never work. All people might end up being equal.

[Leverdude]

How come I cant search people if they make me nervous, for my own saftey of course.

[ursavus.elemensis]

Video presentation about your rights regarding police search:
http://www.youtube.com/watch?v=yqMjMPlXzdA

Website with additional info:
http://www.flexyourrights.org/traffic_stop_scenario

[ScottT]

Video presentation about your rights regarding police search:
http://www.youtube.com/watch?v=yqMjMPlXzdA

Website with additional info:
http://www.flexyourrights.org/traffic_stop_scenario

Ha Ha!!! Dang that was a funny video!

Boys, don't take your training from the Internet. You are liable to end up in a very dark place.

[Old Ironsights]

... If an officer pats you down of a Terry style stop, it is only to protect his rights to keep you from shooting him. ...

That is probably one of the most Anti-Gun things I have read in a long time.

It presumes that any civillian carrying a gun is out to shoot Cops - which is patently absurd, but EXACTLY the kind of thing the Antis love to hear cops say.

[ScottT]

... If an officer pats you down of a Terry style stop, it is only to protect his rights to keep you from shooting him. ...

That is probably one of the most Anti-Gun things I have read in a long time.

It presumes that any civillian carrying a gun is out to shoot Cops - which is patently absurd, but EXACTLY the kind of thing the Antis love to hear cops say.

Watch it! That tinfoil hat might just explode!

Seriously, think about what you are saying. You or I could walk up to who we choose on the street and avoid anybody else. However, we ask police officers to investigate criminal activity. It would be unreasonable for a police officer not to be concerned about his personal safety and the courts have come up with reasonable rules to deal with these issues.

[WCF3030]

I blame myself.
Normally I don't even read the politics let alone take part in them.
After reading some of the "spaced out" replys to this topic I'll stay out of the "politics" from now on.

STEP AWAY FROM THE COMPUTER FELLAS AND GET OUTSIDE EVERY ONCE IN AHWILE.[/b]

[Old Time Hunter]

Ok ScottT, what was so funny???? Makes sense to me, if you are arrested = search. The tactics utilized by the LEO's is pretty much standard training and the refusals are used as obstacles in class.

[ursavus.elemensis]

Boys, don't take your training from the Internet.

"don't take your training from the Internet." I guess you mean don't take your training from lawyers who hand out legal advice on gun discussion boards.

[ScottT]

Boys, don't take your training from the Internet.

"don't take your training from the Internet." I guess you mean don't take your training from lawyers who hand out legal advice on gun discussion boards.

Entertainment value only, I do not dispense ANY legal advice unless someone is paying me to do so. What you do is your business.

[ScottT]

Ok ScottT, what was so funny???? Makes sense to me, if you are arrested = search. The tactics utilized by the LEO's is pretty much standard training and the refusals are used as obstacles in class.

If you are referring to the video, it is hilarious! No cop I know would have handled himself like that one did. In a real life situation, barney could have gotten himself killed at several different points along the way.

If they want to give advice like that, they ought to at least hire a real cop to show them how a traffic stop works.

[Old Time Hunter]

Maybe training has changed in almost 40 years, but our situational training back then had role playing very similar to the verbage used. Suppose it is kinda comical nowadays.

[Buffboy]

If anyone is still interested, Orin Kerr has a very good overview of this case in the Volokh Conspiracy Blog. It includes some of the history of judicial decisions about police search powers.

http://volokh.com/archives/archive_2008 ... 1209061862

Some of the comments on the article are quite good too.

[Old Ironsights]

If anyone is still interested, Orin Kerr has a very good overview of this case in the Volokh Conspiracy Blog. It includes some of the history of judicial decisions about police search powers.

http://volokh.com/archives/archive_2008 ... 1209061862

Some of the comments on the article are quite good too.

Yeah, I guess he buys his tinfoil hats from the same place I do.

http://volokh.com/posts/1199753815.shtml

Virginia State law requires officers to issue a summons for driving without a license. It does not authorize the officers to make an arrest.

No Arrest, no search incident to arrest.

Now, there is another guy there who says the inital arrest was lawful, but the rest of the "proceedures" taken by the detectives are suspect and made it unlawful - invalidating the search:

(link)subpatre (mail):
(Sorry Orin, missed answering your questions)
The arrest itself was lawful. The detention and ticketing/citation for a crime constitute an arrest. A search/frisk would have borne good fruit.

The arrest became unlawful when the cops didn't take Moore to a magistrate OR release him on citation. A search under these circumstances MAY be tainted . . . or not.

The arrest became illegal when the cops took Moore to his hotel. Hence the state's rather bald concession of unlawful arrest. This search is —even by separatist standards— not tainted, it is rotten.

[donw]

i am continously amazed at how complicated laws and enforcement is/has become...

i'm also convinced that the only ones who are able to get justice, once in the system, are those who can afford it...