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Old 02-03-2009, 18:56   #1
Sam Spade
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LE Contacts: Rights and Powers

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RussP
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What can LE do to you or with you in the normal types of encounters? What's the authority to do that stuff? What are your rights?

My old thread died when the server changed over. Not because I like you guys , but because I'm going through notes in preparation for some stuff, I re-present the basics.

I've limited myself to federal law, and where possible to SCOTUS decisions. These represent the floor of your rights---an individual state may restrict LE further than the US Constitution does, but the individual state cannot allow LE more power than the USC permits. And since we're a widespread board, this stuff will be more applicable than purely state law/decisons. Finally, most of the focus is on public encounters, on account of this being CI and all.

First, let's categorize the encounters. There are three basic types: (1) The purely consensual contact; (2) The investigative detention; (3) The arrest. There are some archaic folk who want to categorize things only in two, saying that you're either free to leave or you're under arrest. Sorry, but SCOTUS doesn't see things that way, and hasn't since 1968. There are three categories.

The consensual contact is exactly that: purely consensual on both sides. Cops can make contact with anyone they want, can talk to people about anything they want, can ask people for/about anything they want. If the cop's in a place where he has the right to be, then the other stuff follows. There's no legal requirement to tell you that you're free to leave, though that's one factor that the courts look at in determining voluntariness on your part. SCOTUS wrote in Ohio V Robinette 519 U.S. 33 (1996):
Quote:
The Fourth Amendment does not require that a lawfully seized defendant be advised that he is "free to go" before his consent to search will be recognized as voluntary. The Amendment's touchstone is reasonableness, which is measured in objective terms by examining the totality of the circumstances.
Of course, since this is purely consensual, you're also free to ask for/about anything you want. If you're wondering what your status is, just ask: "Officer, am I free to leave?"

From FL v Bostick, 501 U.S. 429 (1991) (internal citations ommitted)
Quote:
The appropriate test is whether, taking into account all of the circumstances surrounding the encounter, a reasonable passenger would feel free to decline the officers' requests or otherwise terminate the encounter...

Even when officers have no basis for suspecting a particular individual, they may generally ask the individual questions, ask to examine identification, and request consent to search luggage, provided they do not convey a message that compliance with their requests is required.
As Bostick says, he can ask you questions, he can ask you for ID, he can ask for your consent to search or be frisked. The key word in all of that is "ask". You can agree to answer or refuse, but you probably can't lie and claim that it's protected/free speech.

Again, this is purely consensual. That means that the officer can't issue any commands in any way. No verbal orders: "Come here". No visual orders, like lights and siren. No coercion, as seen by a reasonable person. I'm not talking just about blatant stuff like pointing guns or blocking your path. For instance, if you give him your ID, you're not free to go while he's still holding onto it--a reasonable person would generally expect that back.

And from US v Drayton 536 U.S. 194 (2002)
Quote:
Held: The Fourth Amendment does not require police officers to advise bus passengers of their right not to cooperate and to refuse consent to searches. (...)
When Lang (Spade: That's the LEO involved) approached respondents, he did not brandish a weapon or make any intimidating movements. He left the aisle free so that respondents could exit. He spoke to passengers one by one and in a polite, quiet voice. Nothing he said would suggest to a reasonable person that he or she was barred from leaving the bus or otherwise terminating the encounter, or would indicate a command to answer his questions. There were ample grounds to conclude that their encounter was cooperative and not coercive or confrontational. There was no overwhelming show or application of force, no intimidating movement, no brandishing of weapons, no blocking of exits, no threat, and no command, not even an authoritative tone of voice.
As long as the cops keep it consensual, they can ask you for permission on 'most anything. Evidence that crops up along the way is completely admissible.

As a side note that doesn't really fit well anywhere, cops get to do a bunch of stuff before they even contact you. You have no reasonable expectation of privacy in your license plate: it belongs to the state, and cops can check it, can do a computer check of the registered owner and so on without any need to get your permission, and without any suspicion whatsoever. The only catch is that they have to be doing it for a LE-related purpose.
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Last edited by RussP; 07-23-2010 at 06:54..
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Old 02-03-2009, 18:56   #2
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The next step up from a consensual encounter is a temporary detention, most commonly called a "Terry stop". No, you're not under arrest. No, you're not free to leave. Traffic stops very closely mirror Terry stuff in terms of LE authority, but they're a big area that I'm posting separately.

The Terry stop takes its name from Terry v Ohio (392 U.S. 1) a 1968 case. There, an experienced cop saw three guys that just weren't acting right. Based on his training and exerience, he believed that a crime (a robbery) was about to occur, so he detained the three. Based on his training and experience, he thought that Terry might be armed, so he frisked him.

First, no doubt about it: The guy was seized and his clothing was searched. From Terry:
Quote:
It must be recognized that, whenever a police officer accosts an individual and restrains his freedom to walk away, he has "seized" that person. And it is nothing less than sheer torture of the English language to suggest that a careful exploration of the outer surfaces of a person's clothing all over his or her body in an attempt to find weapons is not a "search." Moreover, it is simply fantastic to urge that such a procedure performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a "petty indignity." It is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly.
But that's not to say that those LE actions must be unreasonable. SCOTUS upheld both the detention (Terry stop) and the frisk (Terry frisk, or pat-down) as seizures and searches that were reasonable under the 4th Amendment. Let's remember here that the 4th doesn't require warrants for all seizures and searches, only the ones that are unreasonable otherwise.

In this type of situation, the cop has to have "reasonable suspicion", sometimes called "reasonable articuable suspicion" that the individual has, or is, or is about to commit a crime. That's for the stop. He must then have reasonable suspicion that the guy stopped is both armed and dangerous in order to conduct a frisk.

What's reasonable suspicion? It's something more than a mere hunch. There have to be articuable facts that something's going on. Terry, again:
Quote:
...in justifying the particular intrusion, the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.
Quote:
Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man, in the circumstances, would be warranted in the belief that his safety or that of others was in danger.
All this stuff may turn out to be entirely innocent, that doesn't make it a bad stop or a bad frisk. The cop doesn't have to be right, he just has to be reasonable. He doesn't even need to be mostly right. "Mostly right" is a preponderance of the evidence, 51%, and is a far higher standard of proof. Whether something is reasonable or not is looked at in terms of the totality of the circumstances, and with the officer's training and experience (not yours) in mind. Factors in justifying a frisk can include the time of day, the location, the lighting, the crime under suspicion, the clothes you're wearing, your language, nervousness, body language indicating either fight or flight, whether or not you've been evasive or have lied and so on.

I mentioned "in terms of the officer's training". You're new to this, and that guy over there just looks hinky. That's a hunch, or mere suspicion. I've done this a while, and I know what a prison tat looks like. I notice that his right pocket is lower than his left. I can articulate that he's paying a lot of attention to individuals, but ignores groups. Even if everything is innocent, I'm the one who has reasonable suspicion to stop this guy, and can articulate why he might be armed.

What's a frisk? As shown above, it *is* a search (some cops still don't like to say that, 40 years later, but they're just speaking jargon), but one that's limited to outer clothing, areas where the individual can access weapons. The cop can't manipulate things to figure out what they are, and he can't retrieve or hold things that aren't weapons. That said, many, many things can be used as weapons. More Terry:
Quote:
The sole justification of the search in the present situation is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.
Socks then shoes: Order matters. LE has to have a valid Terry stop before they can do a valid Terry frisk. If the seizure of the person is unconstitutional, then the fruits of the seizure are out, too. This doesn't apply if the search is consensual.

Now as shocking as this sounds, sometimes cops are wrong. If it's a good-faith mistake of fact (NOT law), then the stop is still probably good. So if he misreads your license plate, then stops you because it doesn't match the car you're driving, it's good. No SCOTUS decision on this one, but the 5th, 9th and 10th Circuits, that I know of, say so. For example:
Quote:
`A mistaken premise can furnish grounds for a Terry stop, if the officers do not know that it is mistaken and are reasonable in acting upon it.'
United States v. Shareef,100 F.3d 1491, 1505 (10th Cir. 1996) and quoted in US v Garcia-Acuna 175 F.3d 1143 (9th Cir. 1999)

Once you're detained, the officer can hang onto you for a reasonable period to complete his investigation. Federally, there is NO bright-line time limit for this. That's over in US v Sharpe, 470 U.S. 675 (1985):
Quote:
(...)The Court of Appeals' decision would effectively establish a per se rule that a 20-minute detention is too long to be justified under the Terry doctrine. Such a result is clearly and fundamentally at odds with this Court's approach in this area.

In assessing whether a detention is too long in duration to be justified as an investigative stop, it is appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.
If, for instance, you're on the side of a deserted road and the drug dog is 90 minutes away, then you'll sit for 90 minutes, or as long as the stop officer has reasonable suspicion that you've got dope in there. If I stop you because you match the description of a robber and the witness is 50 minutes away, then you'll sit there, unless you make my suspicion evaporate. Now the K9 can't stop at the groomer's and the witness can't grab a bite to eat on the way over for the show-up. That wouldn't be a diligent pursuit of our investigation into you. This is one reason I keep saying that it may indeed be to your advantage to talk to the cops roadside. If you alibi yourself, or if you let me look into your trunk and there's no stolen stereo there, you'll be on your way more quickly. But if you want to wait, that's your right.

What else can the cops do? IF your state has a law that supports it, they can demand that you identify yourself. No, you can't lie and claim that it's free speech, or somehow else protected. Yes, you can be arrested and booked if you fail to provide your truthful name. That's NOT the same thing as "papers please"; there is no state whatsoever in the US that requires you to carry official papers, and LE can't demand them. We're talking Terry stops here, but if you're driving, yes, you have to have a license. That was decided in Hiibel v 6th Judicial District Court of NV, Humboldt Cty. 542 U.S. 177 (2004)
Quote:
An identity request has an immediate relation to the Terry stop’s purpose, rationale, and practical demands, and the threat of criminal sanction helps ensure that the request does not become a legal nullity. On the other hand, the statute does not alter the nature of the stop itself, changing neither its duration nor its location.
Notice something that's going on in almost all of these cases: The Supreme Court is doing a balancing act (they use "balance" repeatedly) between your rights and a compelling government interest. That keeps coming up.
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Last edited by Sam Spade; 02-04-2009 at 16:59..
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Old 02-03-2009, 18:57   #3
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Traffic stops are probably the number one reason for police/citizen encounters. Because of their nature, established over generations, they are NOT a situation where you're automatically considered as "arrested" or "in custody". That means several things. It means that LEOs don't have to read you Miranda before asking how fast you thought you were going. It also means that LE can't search you as they would if you were in custody. Like Terry stops, you're detained.

Real cops work traffic for two reasons (no, not a tangent). First, they're correcting poor driving behavior and therefore attending to their community caretaker role. Second, they're fishing. Every stop is a reason to interview, a free look into parts of the car, a free check for warrants and so on. (Take the "quota" argument elsewhere, I'm steering somewhere.) So, if a cop decides that you look hinky, he may very well look for a reason to stop you. This is usually, not always, successful. IOW, there are two separate things going on: The reason he stopped you, and the reason he looked at you to start with.

SCOTUS says that it doesn't matter why he was looking to start with, unless he's being outrageous and doing something like racially profiling. You have no expectation of privacy when you violate traffic law, even when that's just a "pretext" to pull you over, find out who you are and see if there's a roach clip hanging from your keychain. The law is Whren v US 517 US 806 (1996).
Quote:
As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.
One of the things that LE can NOT do is stop you merely to inspect your license and registration. Yes, driving is a privilege, not a right, and yes, the state gets to regulate the roads. BUT, the cops have to have some reason to believe that there's a violation. The case is Delaware v. Prouse 440 U.S. 648 (1979)
Quote:
Except where there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver's license and the registration of the automobile are unreasonable under the Fourth Amendment.
And by the way, LE can do a Terry stop on you while you're driving, just as they can when you're walking. Waiting for the violation, however small, is just a belt-and-suspenders approach to contacts. If the cops choose to do a Terry stop on your car, the same rules about the totality of the circumstances apply and so on. US v Arvizu 534 U.S. 266 (2002) laid it out:
Quote:
Considering the totality of the circumstances and giving due weight to the factual inferences drawn by Stoddard and the District Court Judge, Stoddard had reasonable suspicion to believe that respondent was engaged in illegal activity. Because the “balance between the public interest and the individual’s right to personal security,” tilts in favor of a standard less than probable cause in brief investigatory stops of persons or vehicles, the Fourth Amendment is satisfied if the officer’s action is supported by reasonable suspicion to believe that criminal activity “may be afoot,”. In making reasonable-suspicion determinations, reviewing courts must look at the “totality of the circumstances” of each case to see whether the detaining officer has a “particularized and objective basis” for suspecting legal wrongdoing.
Again, with the balancing act.

Once the stop is made, the officer can do many things for safety reasons. He can move you a short distance off the road into a parking lot. He can move you a short distance to a better lit area. He can order you or your passengers out of the car. Pennsylvania v Mimms 434 U.S. 106 (1977) established that for the driver:
Quote:
The order to get out of the car, issued after the respondent was lawfully detained, was reasonable, and thus permissible under the Fourth Amendment. The State's proffered justification for such order -- the officer's safety -- is both legitimate and weighty, and the intrusion into respondent's personal liberty occasioned by the order, being, at most, a mere inconvenience, cannot prevail when balanced against legitimate concerns for the officer's safety.
Maryland v Wilson 519 U.S. 408 (1997) did the same for the passenger:
Quote:
In summary, danger to an officer from a traffic stop is likely to be greater when there are passengers in addition to the driver in the stopped car. While there is not the same basis for ordering the passengers out of the car as there is for ordering the driver out, the additional intrusion on the passenger is minimal. We therefore hold that an officer making a traffic stop may order passengers to get out of the car pending completion of the stop.
Some tin-foilers will point to the progression of cases I'm using and say that it proves a gradual erosion of our liberty. Nonsense. SCOTUS puts out a decison, but they're only supposed to deal with the facts in the case presented. Then the trial courts try to apply it. They frequently goof, and SCOTUS comes back and deals with the tangential issue. The above is an example: The state has a weighty and compelling interest in safety, so they get to reposition the driver for the brief duration of the stop. Some defense lawyer comes along and says that we gotta let his client go---he was the passenger, not the driver, and SCOTUS never said it was cool to move him around. SCOTUS takes the case and says, "What, are you stupid? The goal is the same, the danger is the same (or higher), the intrusion is the same....of course the cop can move the passenger, too". Back to the point of the thread....

As in my first post, he can do *less* coercive things, like ask for consent to search you or your car. By that I mean that he's asking, not ordering.

The Terry doctrine gets extended to you in and around your vehicle, too. For one example, if the LEO has reasonable suspicion that there are weapons in the car and he can articulate a danger---the armed and dangerous two-prong again---he can "frisk" your passenger compartment, looking in places where there might be weapons and securing them as reasonably needed. Should he come up with dope or other evidence of a crime while doing this, it's wholly admissible. The base law is Michigan v Long, 463 U.S. 1032 (1983):
Quote:
The protective search of the passenger compartment of respondent's car was reasonable under the principles articulated in Terry and other decisions of this Court. Although Terry involved the stop and subsequent patdown search for weapons of a person suspected of criminal activity, it did not restrict the preventive search to the person of the detained suspect. Protection of police and others can justify protective searches when police have a reasonable belief that the suspect poses a danger. Roadside encounters between police and suspects are especially hazardous, and danger may arise from the possible presence of weapons in the area surrounding a suspect. Thus, the search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant the officer to believe that the suspect is dangerous and the suspect may gain immediate control of weapons. If, while conducting a legitimate Terry search of an automobile's interior, the officer discovers contraband other than weapons, he cannot be required to ignore the contraband, and the Fourth Amendment does not require its suppression in such circumstances.
The language mirrors Terry, as it should: a balancing act between your rights to be free from government intrusion and the government's compelling need to not get its agents killed. A limited search, going only where weapons can be. Reasonable suspicion as the level of proof. Suspects dangerous and having access to weapons. The factors of lighting, clothing, attitude, body language and so on are all on point as well.

So for all of the threads where the CCW guy gets disarmed on traffic, that case is the root authority for it. That you're armed is pretty much a given. Your bumper stickers, holsters or equipment laying around, statements, computer returns and so on can also provide a reasonable belief of that. That there's a danger is almost a given: "Roadside encounters between police and suspects are especially hazardous..." and to that we add the environmental factors, indicators from your person and maybe the "real" reason that you got stopped.

In a pretty recent case, Brendlin v California, 551 U.S. ___ (2007), SCOTUS ruled that the passenger has been seized for 4th Amendment purposes as well as the driver. This gives him standing to object to the stop. Cops have already been able to pull passengers out and so on. The decision in AZ v Johnson 555 U. S. ____ (2009)confirms that they can do the limited frisks on passengers as well, if the same standards of proof as in Terry are being met. This is really pretty well settled law: AZ v Johnson was 9-0, and Ginsberg (formerly of the ACLU) wrote the decison.

One thing that has to be brought up: If the .gov has the legal, Constitutional authority to do something, then they have the legal, Constitutional authority to use reasonable force to make it stick. The central case in this is Graham v. Connor, 490 U.S. 386 (1989).
Quote:
Held: All claims that law enforcement officials have used excessive force -- deadly or not -- in the course of an arrest, investigatory stop, or other "seizure" of a free citizen are properly analyzed under the Fourth Amendment's "objective reasonableness" standard, rather than under a substantive due process standard.
(...)
Our Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.
(...)
The "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. The Fourth Amendment is not violated by an arrest based on probable cause, even though the wrong person is arrested, nor by the mistaken execution of a valid search warrant on the wrong premises. With respect to a claim of excessive force, the same standard of reasonableness at the moment applies: "Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers," violates the Fourth Amendment. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments -- in circumstances that are tense, uncertain, and rapidly evolving -- about the amount of force that is necessary in a particular situation.
What this means practically is that the suspect gets to decide the level of force that the officer is going to use. The more he resists, the bigger the response is going to be. It's not a butt-whupping for some silly misdemeanor, it's a whupping because he's resisting a lawful arrest.
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Old 02-03-2009, 18:57   #4
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"Arrest" is one of those words that get passed around quite a lot. You often end up with people meaning quite different things. You're arrested if you're not free to leave. You're arrested if you're booked. You're arrested if you're _____. It's made a bit worse because "arrest" isnt in the 4th Amendment; "seizure" is.

An arrest, or being "in custody" is when your freedom to move is restrained in a significant manner. If you're in your car talking to the police, you're probably not in custody. If you're taken to the station in handcuffs without your consent, you're probably in custody. If you're in handcuffs in the back of a police car, you're probably in custody. For this custody to be lawful, it has to be based on probably cause (sorry, I had to) that is, probable cause that you have committed a crime. As an aside, cops can morph a lawful detention into an unlawful arrest when they use too much force, take too long, move you too much and so on.

So what's probable cause? I still run into to plenty of people who think that it means "more likely than not". This is incorrect. Probable cause is a lower level of proof than the preponderance of the evidence, so PC is somewhere lower than 50%. A general rule tossed out is "if the apparent facts set out in the affidavit are such that a reasonably discreet and prudent man would be led to believe that there was a commission of the offense charged, there is probable cause justifying the issuance of a warrant." Dumbra v US 268 U.S. 435 (1925). For what we're talking about---CCW contacts with the police---if the cops see you do it, they have probable cause. You should notice that the 4th Amendment makes no distinction between the level of proof needed to search or to seize.

When you're in custody, what are your rights? Generally, all those Miranda things kick in WRT interrogation. If you're not interrogated, those things don't matter. You still have the freedom to give or deny consent to searches, but the state will have a little more work to do to show that the consent wasn't coerced.

The police powers are expanded when you move from detained to in custody. They can now conduct a detailed search of your person and the area area within your immediate control for evidence or contraband. Absoultely they can take any weapons that you may have access to.
Chimel v. California, 395 U.S. 752 (1969):
Quote:
An arresting officer may search the arrestee's person to discover and remove weapons and to seize evidence to prevent its concealment or destruction, and may search the area "within the immediate control" of the person arrested, meaning the area from which he might gain possession of a weapon or destructible evidence.
New York v Belton, 453 U.S. 454 (1981):
Quote:
The search of respondent's jacket was a search incident to a lawful custodial arrest, and hence did not violate the Fourth and Fourteenth Amendments. The jacket, being located inside the passenger compartment of the car, was "within the arrestee's immediate control" within the meaning of Chimel v. California, 395 U.S. 752 , wherein it was held that a lawful custodial arrest creates a situation justifying the contemporaneous warrantless search of the arrestee and of the immediately surrounding area. Not only may the police search the passenger compartment of the car in such circumstances, they may also examine the contents of any containers found in the passenger compartment. And such a container may be searched whether it is open or closed, since the justification for the search is not that the arrestee has no privacy interest in the container but that the lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have.
Now, there are a number of states with offenses that are legally misdemeanors, that is they're arrestable, put him in full custody things, but the cops have the option of issuing summonses and not taking the guy to the pokey. SCOTUS clarified the expectations in Chimel with Knowles v Iowa 525 U.S. 113 (1998) and essentially prohibited searches incident to citation for traffic. (Knowles runs about a page, so I'm not grabbing excerpts.)

The latest addition to 4th Amendment issues is Arizona v Gant 556 U. S. ____ (2009). Here, the court reined in police powers. Under Belton, above, it has been pretty common practice to search the passenger compartment after an arrest is made. SCOTUS says that was too expansive of a reading. The purpose of the search is to secure evidence that might be destroyed or weapons that might be grabbed. If the guy is in cuffs in the back of your car, just how is he going to grab anything? (In Belton, there were more people than cops, and it was physically impossible to secure them all.) The current read is that the cops can go back into your car to retrieve evidence related to the arrest, but only that. So, if you're going for reckless driving, there isn't going to be a Gant search---no evidence to be found. If you're going for DUI, there probably is going to be a search---highly likely that there are bottles, bar receipts or what-have-you. That's not to say that the cops can't get into your car some other way, such as PC, or something that's in plain view, or so on. Their words (out of order, but it sets up my point better):

Quote:
This Court rejects a broad reading of Belton that would permit avehicle search incident to a recent occupant’s arrest even if there were no possibility the arrestee could gain access to the vehicle at thetime of the search. The safety and evidentiary justifications underlying Chimel’s exception authorize a vehicle search only when there is a reasonable possibility of such access.
They go on to say that LE was treating Belton too much as an entitlement, and not looking at specific circumstances. Interesting roll-back of government powers, and even Scalia joined in the majority.

But, still, no warrant is required to search the car. In fact, LE doesn't even need PC that the car contains evidence of your crime:
Quote:
Police may search the passenger compartment of a vehicle incident to a recent occupant’s arrest only if it is reasonable to believethat the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest.
So, if you're in a full-custody arrest, the cops get you, your clothing and your containers They no longer get the passenger compartment of your car with all of its containers, unless they have some other justification for a search.
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Old 02-03-2009, 18:58   #5
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Old 02-03-2009, 19:25   #6
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Oh these are good stuff. I'm tagging this. Can't wait to see the rest.

Thanks!
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Old 02-03-2009, 19:45   #7
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Thanks Sam...
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Old 02-03-2009, 20:00   #8
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fwiw:

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The next step up from a consensual encounter is a temporary detention, most commonly called a "Terry stop". No, you're not under arrest. No, you're not free to leave. Traffic stops very closely mirror Terry stuff in terms of LE authority, but they're a big area that I'm posting separately.

Yo do know a "arrest" is not neccesary mean ; "in hand cuffs" and it bad to make relationship to "terry stop". Terry stop was about interpetation of search and seizure by the courts and was it ( terry vrs oh ) in-violation of his 4th amendment rights.
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Old 02-03-2009, 23:18   #9
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Thanks for putting that up Sam
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Old 02-04-2009, 05:52   #10
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Great info, Sam. Thanks.
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Old 02-04-2009, 06:46   #11
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Originally Posted by Sam Spade View Post
reserved for a party of four
OK, I'll cover the tip!

Here's the tip:

Sticky this thread NOW so it is not buried under a thread which is buried under a thread. It will be easier for those who need to find...

I do like the way you address Hiibel - which does come up in WI periodically being only OC - WI having their own law as many do, but specifying that "stand & identify" would fall under RAS, not a consensual contact. The upshot is that the most likely reason for a contact would be the presence of the gun which, while not causing RAS by itself, does apparently let the officer have Terry concerns I believe.

Many thanks (again) Sam!





BTW, did you cover such issues as officer must have their hat on, probably cause, and not following the subject through 7 jurisdictions?

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Old 02-04-2009, 07:44   #12
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...Sticky this thread NOW so it is not buried under a thread which is buried under a thread. It will be easier for those who need to find...
For a while...
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Old 02-04-2009, 08:03   #13
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All right, Sam. The 4th is 10 hours old! Where is the rest of it?

I second the sticky motion, and I'm thinking that he'll cover probably cause soon.

Hawk

ETA: Dang, Russ, you're moving fast today!
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Old 02-04-2009, 09:41   #14
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BTW, did you cover such issues as officer must have their hat on, probably cause, and not following the subject through 7 jurisdictions?

Durnit, WIG, I wanted to ask about the hat!

Meh....it's a moot point around here, anyway. Our JBTs don't wear covers.
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Old 02-04-2009, 10:06   #15
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Old 02-04-2009, 13:51   #16
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great post, and thanks for making it.

i do have a question, though...

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but you probably can't lie.
where do you get that on a federal level?

i believe some states make it a crime to lie to a police officer, but not all. but i thought you were sticking to the federal level, and i have never heard anyone before claim it is illegal on a federal level to lie to a police officer.
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Old 02-04-2009, 17:51   #17
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(You can't lie)

where do you get that on a federal level?

i believe some states make it a crime to lie to a police officer, but not all. but i thought you were sticking to the federal level, and i have never heard anyone before claim it is illegal on a federal level to lie to a police officer.
I may have phrased that poorly. I meant to say that you have no right to lie; it's not some form of free speech. Changed it to reflec that approach. Am I making sense?
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Old 02-04-2009, 18:14   #18
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Great posts Sam. Please be sure to include that people should not try to be sidewalk lawyers. Assert your rights, such as not giving consent to search, if you wish, but never interfere or try to resist or stop an officer.

Rights are protected in court.

Looking forward to more good reading.
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Old 02-04-2009, 18:41   #19
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Sam,

Did you say that they can not stop you just to check for license. They do that here all the time. 4 or 5 cop cars have the road blocked and cars backed up on both sides. If you don't want to wait, they send a car after the "runner". What gives?
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Old 02-04-2009, 18:48   #20
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I may have phrased that poorly. I meant to say that you have no right to lie; it's not some form of free speech. Changed it to reflec that approach. Am I making sense?
i see. yes, that makes sense, and i agree.
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Old 02-04-2009, 18:58   #21
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Sam,

Did you say that they can not stop you just to check for license. They do that here all the time. 4 or 5 cop cars have the road blocked and cars backed up on both sides. If you don't want to wait, they send a car after the "runner". What gives?
That's a checkpoint, and it's operated under a different set of rules. DUI or safety checkpoints are run under Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990). The major difference is that they must NOT be done with the primary purpose of criminal enforcement. The cop in Prouse was looking for people violating the law. Checkpoints must be primarily aimed at road safety, which the court sees as a different thing.

Second, the stops on the road just checking DL and registration were essentially random. Random stops of citizens are not acceptable. The checkpoint is supposed to stop people in such a manner as to remove that taint. The guys that turn around can't be stopped for turning, but can be stopped if they violate another traffic law.

Here's a list of relevant federal cases (a wee bit of bias) and commentary: http://www.roadblock.org/federal/casefed.htm
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Old 02-04-2009, 19:09   #22
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Sam,

Did you say that they can not stop you just to check for license. They do that here all the time. 4 or 5 cop cars have the road blocked and cars backed up on both sides. If you don't want to wait, they send a car after the "runner". What gives?
i'm not sam, but until he responds, here is some homework for ya.

a case you want to look at is Delaware v. Prouse. in that case (relying on several other cases), SCOTUS ruled that systematic driver's license checkpoints are constitutional if they meet certain requirements.

also, here is a web page that talks a little about that case and other cases related to various types of checkpoints.

http://www.virginiacops.org/News-Res...afficstops.htm

Quote:
New U.S. Supreme Court Decision
Approves "Informational" Checkpoint

By Julie A. Risher, Public Safety Attorney, Winston-Salem, North Carolina


A January decision of the U.S. Supreme Court sheds new light on the constitutionality of vehicle checkpoints, specifically "informational" checkpoints. This column reviews that case, Illinois v. Lidster, and vehicle checkpoints in general.
Checkpoint Challenged
On August 30, 1997, Detective Vasil spent a few hours standing in the middle of the eastbound lanes of busy North Avenue wearing an orange reflective vest. He stopped each vehicle that passed for only 10-15 seconds to hand the driver a flyer that read: "Fatal hit and run accident. Assistance needed in identifying the vehicle and driver involved in this accident, which killed a 70-year-old bicyclist." Vasil asked drivers only what they had seen there the previous week. The officer hoped that one of the drivers was regularly on the road at this time and might have information about the fatal accident.

Suddenly, a vehicle in line swerved and almost struck Vasil, who jumped out of the way. When he approached the driver, Vasil smelled alcohol on the driver's breath and noticed that his speech was slurred. Another officer performed sobriety tests. After the tests, officers arrested the driver, Robert S. Lidster, for driving while impaired.

At trial, Lidster challenged his arrest and evidence from the stop, arguing that the information-seeking checkpoint violated his Fourth Amendment protection against unreasonable seizure. The trial court denied the motion, and the defendant appealed. The Illinois Supreme Court reversed the trial court, relying on Indiana v. Edmond.1 (In Edmond, the U.S. Supreme Court had disapproved a drug checkpoint, finding that it constituted an unreasonable seizure.2) The U.S. Supreme Court disagreed, however, and upheld the information-seeking stop as constitutionally reasonable.

To understand why the Lidster checkpoint is constitutional when the drug checkpoint is not requires review of the Court's decisions involving stops not based on individualized suspicion. The Court has recognized limited circumstances in which the Fourth Amendment's usual requirement of individualized suspicion does not apply, but all stops must be reasonable. To determine reasonableness, courts balance the public interest the stop serves and the individual's right to be free from governmental interference.

The Court has allowed certain vehicle checkpoints without individualized suspicion. Whether a vehicle checkpoint is reasonable depends on (1) the gravity of the public concern, (2) the degree to which the seizure addresses or advances the public concern, and (3) the severity of interference with individual liberty.3 Using these factors, the Court has approved vehicle stops at border checkpoints and driver's license and registration checkpoints under specific circumstances. The Court has limited law enforcement, however, by holding that checkpoints created for general crime control (including drug enforcement) are not constitutional. Illinois v. Lidster provides the latest guidance on where the constitutional line lies when officers have no particularized suspicion.

Border Patrol Checkpoints
The Court analyzed a permanent immigration checkpoint 66 miles north of the Mexican border.4 A uniformed agent visually screened all northbound vehicles, directing some to a secondary checkpoint to answer questions about citizenship and immigration status for three to five minutes. The Court considered that the extremely important national policy limiting immigration could only be served by interior checkpoints, because the vast border cannot be controlled effectively. Further, this interest outweighs the checkpoint's minimal intrusion on driver privacy. The agent's plain-view visual inspection was not a search. Even if a driver were stopped, he only answered a question or two and produced a citizenship document. Consequently, the checkpoint was constitutionally valid.

Driver's License Checkpoints
The Fourth Amendment's reasonableness standard prohibits officers from randomly stopping vehicles to check driver's licenses and registration.5 In Delaware v. Prouse, a patrolman stopped a vehicle without reasonable suspicion to check the driver's license and registration. He seized marijuana in plain view. Addressing the stop's constitutionality, the Court noted that the public interest in ensuing that motorists are licensed and cars are registered justified the checkpoint's slight intrusion on motorists. In Prouse, however, the officer had unbridled discretion regarding which cars to stop, making the checkpoint unconstitutional. By contrast, license checkpoints conducted in a systematic, predesignated manner are constitutional.

Sobriety Checkpoints
Sobriety checkpoint stops without individualized suspicion are constitutional.6 Considering a checkpoint program to detect drunk drivers, the Court noted that each stop lasted approximately 25 seconds. Officers directed any driver who showed signs of insobriety to the side and administered field tests; intoxicated drivers were arrested. The Court held that the magnitude of the government's interest in eradicating the increasing problem of drunken driving outweighed the slight intrusion the stop imposed on all motorists.

General Crime Control Checkpoints
Vehicle checkpoints for general crime control are constitutionally unreasonable.7 At an Indianapolis checkpoint to detect unlawful drugs, each driver was briefly stopped and asked to produce a driver's license and registration. The officer looked for any signs of impairment and conducted a plain view examination of the car. A narcotics detection dog walked around the outside of each vehicle. Each stop was conducted in the same manner and lasted five minutes or less. The Court concluded that a roadblock to check for narcotics was an investigation for general criminal activity. The Court noted:

We decline to suspend the usual requirement of individualized suspicion where the police seek to employ a checkpoint primarily for the ordinary enterprise of investigating crimes. We cannot sanction stops justified only by the generalized ever present possibility that interrogation and inspection may reveal that any given motorist has committed some crime. Informational Checkpoints
Illinois v. Lidster asks, Are information-seeking checkpoints constitutional?8 The Court answered Yes, concluding that the substantial interest in solving a serious crime outweighed the minor intrusion the stop imposed on motorists. Applying the balancing test, the Court noted that the government's interest in solving a deadly hit-and-run accident is a grave public concern, and the checkpoint's purpose was not general crime control but investigation of a specific, particular crime. The checkpoint was narrowly tailored to advance the government interest (same location as the crime, about one week after the crime, and at approximately the same time of day). Finally, stops were extremely brief, systematic, and limited in scope to a request for information. There is no Fourth Amendment prohibition on officers simply asking citizens in a public place for voluntary cooperation in providing information. Rejecting the argument that allowing information stops would result in a proliferation of checkpoints, the Court pointed to the limitations of police resources and community intolerance of traffic interferences as inherently limiting forces.
Although the Fourth Amendment permits information-seeking checkpoints, the protection against unreasonable search and seizure still applies to the procedures used:

The crime about which information is sought must be serious.

Checkpoints must be narrowly tailored (location, time of day, and duration) to the investigative purpose.

All checkpoint stops must be brief and systematic; arbitrary stops are unconstitutional.

Officers may not stop vehicles to conduct generalized interrogation.
Information-seeking checkpoints are an important tool for law enforcement. Witnesses may not realize that they have useful information.9 Ours is a mobile society; notifying drivers about crimes may be the only way to reach potential witnesses in some cases. However, agencies should diligently follow the Court's guidance during checkpoints (stops without individualized suspicion) to avoid converting a useful law enforcement tool into an unreasonable (and therefore unconstitutional) stop.
The author gratefully acknowledges the assistance of research intern Christina E. Foglio, Wake Forest University School of Law.

1 Illinois v. Lidster, 779, N.E.2d 855 (Ill. 2002), overturned by Illinois v. Lidster, -U.S.-(2004).
2 City of Indianapolis v. Edmond, 531 U.S. 32, 41 (2000).
3 Brown v. Texas, 443 U.S. 47, 99 (1979).
4 United States v. Martinez-Fuerte, 428 U.S. 543, 566, 546 (1976).
5 Delaware v. Prouse, 440 U.S. 648 (1979).
6 Michigan v. Sitz, 496 U.S. 444, 455 (1990).
7 City of Indianapolis v. Edmond, 531 U.S. 32 (2000).
8 Illinois v. Lidster, -U.S.-(2004).
9 Schneckloth v. Bustamonte, 412 U.S. 218, 225 (1973).


From The Police Chief, vol. 71, no. 3, March 2004. Copyright held by the International Association of Chiefs of Police, 515 North Washington Street, Alexandria, VA 22314 USA.
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Old 02-04-2009, 19:49   #23
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Cool, Thanks guys.
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Old 02-04-2009, 23:18   #24
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Sam
Thanks for showing how much our rights have been degraded over time! I guess that 's what we get when the lawyer ease meaning is applied to the straight forward wording of our Constitution. Cause if you look at the totality of what you posted we are no longer are presumed innocent but are guilty until we prove our innocence. Sam don't take this a punking you I'm punking the ones that have preverted what our founding fathers wrote-who if you know history were very learned and brillant men. They toiled over the Constitution for four years to ensure what they wrote was what they ment, to take all whats if out-plain simple english, easily defined!

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

unreasonable As defined by websters:1 a: not governed by or acting according to reason <unreasonable people> b: not conformable to reason : absurd <unreasonable beliefs>
2: exceeding the bounds of reason or moderation <working under unreasonable pressure>

probable As defined by Websters:1 : supported by evidence strong enough to establish presumption but not proof <a probable hypothesis>
2 : establishing a probability <probable evidence>
3 : likely to be or become true or real <probable outcome

cause As defined by Websters:1 a: a reason for an action or condition : motive b: something that brings about an effect or a result c: a person or thing that is the occasion of an action or state ; especially : an agent that brings something about d: sufficient reason <discharged for cause>
2 a: a ground of legal action b: case
3: a matter or question to be decided
4 a: a principle or movement militantly defended or supported b: a charitable undertaking <for a good cause>

Plain simple english to me! Very easy for the layman to understand- Unless you see or are told by a court (warrented)that the law has been violated you have no right to stop/search or seize. If you read the history of the 4th it was to stop the government from coming into your house/stopping you on the street and seizing your property with out a lawful need. But as we know by what the lawyers/courts have done to prevert the meaning of the 4th we are now where we are at. Presumed guilty!
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Old 02-05-2009, 05:56   #25
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2x So that's what you do behind that curtain! All this time I just thought you were changing clothes in a phone booth.

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