New warrantless search laws

Pur48Ted · Sep 29, 2009

otr500 said: ↑

Thank you Mr. roadkill for your post. I ask for someone to provide proof. What a person thinks or posts as fact does not convince me otherwise.
1)-I would never accept implied compliance or implied consent for an illigal search. In fact there is no law that I am aware of that is worded as implied compliance.
There are instances backed up by the courts when this is allowed. If you let someone drive your vehicle, even if you are in it, and an officer wants to search it, the driver can, against you wishes, authorize a search. This would be implied consent.
If you enter a place with signs that forbid guns, and states you can be searched, you have given implied consent. You do have the option of not entering.
If you go pass the warning sign(you can be searched) onto federally controlled property you have given implied consent.
2)- If you are familiar with the law of the land it is called the Supreme Court. It would not matter if there was an "implied compliance" or "implied consent" law in all 50 states, without an exclusion for CMV's in the case "Arizona v. Gant, 07-542" all such laws in all 50 "states" would be null and void.
We could get into a debate like the ones on guns for a decade but as long as the supreme law of the land takes precedence it will stand over state laws until, or if ever, the Supreme Court should decide to revisit the law and change it.
This is fact, and this is the law.
There are instances when reasonable suspicion, and an ensuing search, will stand up in court.
Those interested can search; "Arizona v. Gant, 07-542" for the rest of the story.
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The ONLY "Implied Consent" law pertains to the IMPLIED CONSENT you give the State to submit to a BAC test if you are suspected of drunk or drugged driving......and nothing else.

Brickman · Sep 29, 2009

dieselbear said: ↑

Brickman,

Your right. If I am searching a truck, car, home, you look without tearing things up. Now as you find contraband things can change. I've seen door panels removed, dashes taken apart and put back together if no contraband. If also seen things damaged on searches and from what I remember the Agency had to fix those damaged items if no contraband was found. Now, I've seen cars strip on the side of the road once contraband was located in the dash, in hidden compartments etc. You and many others would probably be surprised where we have located dope, guns, large sums of U.S. Currency. I saw one of our best indiction officers that I have worked with for 12 years stop a Isuzu Trooper, have reasonable suspicion that criminal activity was afoot. A K-9 scan was positive. After searching the entire vehicle and not finding anything or hidden compartments the officer popped the vehicle's hood and immediately smelled fresh Bondo. Looking at the engine compartment he noticed as well as me, that the battery looked overerly big. Further examination showed that the battery was sitting in the cradle sideways and the smell of Bondo was coming from it. A quik pry of the corners revealed a hollowed out shell of a RV battery with a small lawnmower battery inside and 5 packages of heroin wrapped in celephane. I've watched the same guy within 3 minutes of a search, of course after probable cause (K-9 alert) short circuit hidden compartments and watch dashboards open up to reveal dope, money and a cache of weapons. I can't speak for all officers or speak of their actions but the guys I have worked with are very cautious when it comes to searches. You have to be to ensure you don't lose your case in court and not open yourself up to liability or lawsuits. In case you haven't noticed the ACLU and NAACP have been aggressively scrutinizing police activities around the country. Just like driver's that want and do the right thing, I believe most Oficers/Troopers and Inspectors want to do it right and actually do. As I have stated before each industy has good and bad. A lot of issues I have seen with officers comes down to training. Some guys that are doing it wrong are not doing so viciously, but have not received the proper training or supervision. And I would imagine you have some bad actors as well that should never have been able to wear the badge. Of course they usually get taken out by IAU eventually. Good luck guys and be careful.
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Like any industry you have bad eggs. We all know about the ones in trucking.

I've got a question for you. How often do you run across guys like the above case I mentioned. The cops thought I was carrying, I told them repeatedly they were wasting my time and theirs. They didn't listen and searched wasting an hr of my time and theirs, and FOUND NOTHING.

Brickman don't do drugs, never has, Brickman don't traffic or transport drugs.

Matter of fact Brickman holds a concealed fire arms license. So that should tell you just about how much trouble with the law that Brickman gets into. The point of all of this is to show you that I am not lying, and I am a law abiding person.

How often do you run into a case like that where it was either a case of mistaken identity or some other profiling mistake?

Thanks for responding.

otr500 · Sep 29, 2009

Why is there a protective presumption between law enforcement officers that "ALL" police officers always follow the letter of the law?
If a police officer pulls a suspect over for a tail light out this does not give him(or her) presumptive rights to assume that since a person has a tail light out(absent any reasonable suspicion or probable cause) that the officer should ask to search the vehicle for ---they don't know so they can not tell you what. They just say, "you don't mind if I search your vehicle do you?" If an individual consents then great. The officer is legal to be nosey. If not then anything else, again lacking reasonable suspicion or probable cause, is illigal.
Mr. dieselbear wrote below;
"

So in basic terms, I lock up a drunk. I search the car, because I have probable cause to do so, and I'm looking for alcohol.
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The "probable cause" would be what? That beer bottles could explode thus endangering the public. Why would not a violation of the law(DUI) be grounds to secure a warrant, and the vehicle, then perform a legal search. There is probable cause that a vehicle left unattended on the side of the road could pose a hazzard. The drunk isn't going anywhere, the vehicle isn't going anywhere. Where would be the great need for expediency to forgo lawfullness?
The Fourth Amendment;

"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."
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.
This is clear and in conjunction with the Fourteenth Amendment it does not take a scholar of jurisprudence to understand. This already crystal clear "right" was again wiped off in
Arizona v. Gant, 07-542.

The court ruled without any doubt;
Justice John Paul Stevens said in the majority opinion that warrantless searches still may be conducted if a car's passenger compartment is within reach of a suspect who has been removed from the vehicle or there is reason to believe evidence will be found of the crime that led to the arrest.

" When these justifications are absent, a search of an arrestee's vehicle will be unreasonable unless police obtain a warrant," [/ QUOTE] Stevens said.
Also;

"Countless individuals guilty of nothing more serious than a traffic violation have had their constitutional right to the security of their private effects violated as a result."[/ QUOTE]
http://www.sfgate.com/cgi-bin/article.cgi?f=/n/a/2009/04/21/national/w071808D29.DTL&hw=searches&sn=002&sc=879#ixzz0SUatnxXO

The circumstances leading to gants arrest and subsequent search of his vehicle was a traffic violation. He was in the patrol car at least 8 feet away. There was not a problem of safety, and the courts affirmed that the officer should have waited for a warrant, which still may or may not have been prima facie. Does this means we should take this as fact of law, and work within these boundaries, or figure out how to get around it?
With all of the above there are those in power that wish, for some unimagined and uncomprehensible reason, to circumvent the law. One would ask why but is there rhyme or reason. One could argue to keep our streets safe and protect innocent citizens. This would be a good arguement.
The question should be;
If there are laws why do officers choose to try to circumnavigate these laws? Why, with the supreme law of the land as protection, should an individual be concerned with having to be presumed guilty for expecting others to stay within the scope of the law?
If I am forced to abide by laws then who should be exempt?
For the record, I am glad the officer found the dope. I wish he had gotten a warrant. I wish the guy faced 30 or more years in jail. At least the drugs are off the street.
I have never done drugs and never drank. It offends me that I should be expected to allow my constitutional(federal and state) rights to be abridged for no reason or risk illigal threats.
I also know that concerning certain aspects of life that to give an inch is to expect a mile to be taken. Many states in this country are building super coops(very large weigh stations) for the safety of our roads. Should I have be concerned that the average citizen will one day be forced to have to detour into these and produce credentials? I hope not. California and Texas does this. Why not do what is necessary at the borders to protect us? Can we explore into deep space and not be able to figure out how to keep illigals from roaming our streets?
Are there any out there, of sound mind, that are not glad there are many like myself?

Here would be a great senario;
A man is arrested for an outstanding warrant. As a matter of safety the vehicle should be towed. When the vehicle arrives at the impound a drug dog hits on the vehicle. A warrant on probable cause is issued, the drugs are found, a dealer is locked up a long time, our streets are safer, and DARE might have a nice vehicle to promote drug awareness with. Who can find fault with this and why?
I have to end this as I am very passionate concerning my beliefs and could continue my verbiage a considerable length time.

dieselbear said: ↑

Man, you guys are really in the dark if you are just hearing of this. There is really nothing new here. All the same rules for searching vehicles that we have been playing with for years. Except, it pretty much takes out the blanket "search incident to arrest." Search incident to arrest gave you the entire area in the vehicle that the operator or occupants could reach when they were arrested. What Gant did was now make it where I'm looking for fruits of the crime when I arrest someone. So in basic terms, I lock up a drunk. I search the car, because I have probable cause to do so, and I'm looking for alcohol. If I lock up a suspended driver, I'm looking for documentation that indicated the suspension, old citations etc. Nothing new here guys. You either need probable cause, consent or a warrant. Probable cause can be a wide spectrum to include a K-9 alert on your vehicle.
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otr500 · Sep 29, 2009

And we have laws to protect us for this very reason.

Brickman said: ↑

Like any industry you have bad eggs. We all know about the ones in trucking.

I've got a question for you. How often do you run across guys like the above case I mentioned. The cops thought I was carrying, I told them repeatedly they were wasting my time and theirs. They didn't listen and searched wasting an hr of my time and theirs, and FOUND NOTHING.

Brickman don't do drugs, never has, Brickman don't traffic or transport drugs.

Matter of fact Brickman holds a concealed fire arms license. So that should tell you just about how much trouble with the law that Brickman gets into. The point of all of this is to show you that I am not lying, and I am a law abiding person.

How often do you run into a case like that where it was either a case of mistaken identity or some other profiling mistake?

Thanks for responding.
Click to expand...

dieselbear · Sep 29, 2009

otr500 said: ↑

The officer is legal to be nosey. If not then anything else, again lacking reasonable suspicion or probable cause, is illigal.
Mr. dieselbear wrote below;
"
The "probable cause" would be what? That beer bottles could explode thus endangering the public. Why would not a violation of the law(DUI) be grounds to secure a warrant, and the vehicle, then perform a legal search. There is probable cause that a vehicle left unattended on the side of the road could pose a hazzard. The drunk isn't going anywhere, the vehicle isn't going anywhere. Where would be the great need for expediency to forgo lawfullness?
The Fourth Amendment;
.
This is clear and in conjunction with the Fourteenth Amendment it does not take a scholar of jurisprudence to understand. This already crystal clear "right" was again wiped off in
Arizona v. Gant, 07-542.

The court ruled without any doubt;
Justice John Paul Stevens said in the majority opinion that warrantless searches still may be conducted if a car's passenger compartment is within reach of a suspect who has been removed from the vehicle or there is reason to believe evidence will be found of the crime that led to the arrest.

" When these justifications are absent, a search of an arrestee's vehicle will be unreasonable unless police obtain a warrant," [/ QUOTE] Stevens said.
Also;

"Countless individuals guilty of nothing more serious than a traffic violation have had their constitutional right to the security of their private effects violated as a result."[/ QUOTE]
http://www.sfgate.com/cgi-bin/article.cgi?f=/n/a/2009/04/21/national/w071808D29.DTL&hw=searches&sn=002&sc=879#ixzz0SUatnxXO

The circumstances leading to gants arrest and subsequent search of his vehicle was a traffic violation. He was in the patrol car at least 8 feet away. There was not a problem of safety, and the courts affirmed that the officer should have waited for a warrant, which still may or may not have been prima facie. Does this means we should take this as fact of law, and work within these boundaries, or figure out how to get around it?
With all of the above there are those in power that wish, for some unimagined and uncomprehensible reason, to circumvent the law. One would ask why but is there rhyme or reason. One could argue to keep our streets safe and protect innocent citizens. This would be a good arguement.
The question should be;
If there are laws why do officers choose to try to circumnavigate these laws? Why, with the supreme law of the land as protection, should an individual be concerned with having to be presumed guilty for expecting others to stay within the scope of the law?
If I am forced to abide by laws then who should be exempt?
For the record, I am glad the officer found the dope. I wish he had gotten a warrant. I wish the guy faced 30 or more years in jail. At least the drugs are off the street.
I have never done drugs and never drank. It offends me that I should be expected to allow my constitutional(federal and state) rights to be abridged for no reason or risk illigal threats.
I also know that concerning certain aspects of life that to give an inch is to expect a mile to be taken. Many states in this country are building super coops(very large weigh stations) for the safety of our roads. Should I have be concerned that the average citizen will one day be forced to have to detour into these and produce credentials? I hope not. California and Texas does this. Why not do what is necessary at the borders to protect us? Can we explore into deep space and not be able to figure out how to keep illigals from roaming our streets?
Are there any out there, of sound mind, that are not glad there are many like myself?

Here would be a great senario;
A man is arrested for an outstanding warrant. As a matter of safety the vehicle should be towed. When the vehicle arrives at the impound a drug dog hits on the vehicle. A warrant on probable cause is issued, the drugs are found, a dealer is locked up a long time, our streets are safer, and DARE might have a nice vehicle to promote drug awareness with. Who can find fault with this and why?
I have to end this as I am very passionate concerning my beliefs and could continue my verbiage a considerable length time.
Click to expand...

otr500, are you asking what probable cause is or are you argueing the fact that a drunk driver arrest constitute no probale cause for a search?
The "fruits of the crime" would be the open container of an alcoholic beverage inside the vehicle. Or the case of beer with 15 empties on the floorboard. Or any other broad range of alcohol related issues. In some State's, the driver does not have to consent to the breath test. Now, granted they can use that now in a few State's as prima facie evidence that the person was impaired by alcohol for the refusal to submit to a breath test. You use all of your observations when detailing a drunk driver's behavior, movements and whatever alcohol evidence is present at the scene. Once I lock up a drunk, I'm searching the car for evidence of the alcohol intoxication. Nothing more, nothing less. If I locate a case of beer half empty on the rear floorboard and their is a loaded handgun and a bag of weed right there with it, guess what now the drunk is charged with the CDS violation and the handgun violation. I think you have misinterpreted Gant, it doesn't say you can't do a probable cause search. It just restricts the broad spectrum of search incident to arrest. As long as your conducting your probable cause search looking for "fruits of the crime" that you have arrested the defendant for to begin with. I know I have had detailed, in depth discussions with 5 judges in multiple jurisdictions around my State and quite a few good defense attorneys and they have all concurred on this assesment.
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dieselbear · Sep 29, 2009

Brickman said: ↑

Like any industry you have bad eggs. We all know about the ones in trucking.

I've got a question for you. How often do you run across guys like the above case I mentioned. The cops thought I was carrying, I told them repeatedly they were wasting my time and theirs. They didn't listen and searched wasting an hr of my time and theirs, and FOUND NOTHING.

Brickman don't do drugs, never has, Brickman don't traffic or transport drugs.

Matter of fact Brickman holds a concealed fire arms license. So that should tell you just about how much trouble with the law that Brickman gets into. The point of all of this is to show you that I am not lying, and I am a law abiding person.

How often do you run into a case like that where it was either a case of mistaken identity or some other profiling mistake?

Thanks for responding.
Click to expand...

Brickman,

I don't doubt you. But do you believe everybody you talk to? In the world of law enforcement there is a saying, "I trust in God, all others get run through NCIC". Which basically means, Trust no one. I've dealt with thousands of indivduals over the years, you truly never know who is lying to yoju and who is being straight. My experience has taught me that most people, not all, but most are lying to me for one reason or another. Whether self preservation or not most people lie to save their bacon if they think they could get a ticket or go to jail.

As far as a "lookout" for dope haulers, I don't see them hardly at all. After working interdiction a few years back, yes we would get DEA tips but not many. Most never panned out, meaning we never saw the vehicle or it was stopped prior to our location. When I was doing interdiction I didn't want to know, I wanted to make my own case on it's own merritts. One of the classic cases of thinking I had something and didn't was a stop I had three years ago. Get a truck stopped heading N/B from Atlanta, GA to Hunts Point. I ask the driver for his bills and he states, "i don't have any. I don't know what is in the back. Could be 500 lbs of dope or 100 illegals. I'm being paid $2000.00 to drive this truck to New York." I asked him where he picked it up from? He stated "at a truck stop. I don't know the owner. Someone approached me and offered me money." Well, I'm sure the other officers on here will tell you that a "red flag" should go up that this is not normal. Long story short, after we had probable cause to search, we found no dope in the produce that originated out of Mexico. wasted 4 hours to off load the truck and send the driver on his way. I don't go out and search vehicles everyday, but I will when I have a reasonable articulable suspicion. I'll get the K-9 scan or get consent. But I have not nor will I ever do any gestapo tactics, that will get you fired in my Agency and/or sued personally.

Brickman · Sep 29, 2009

Truly being a cop is a thankless job. Just like a truck driver.

I thought it was hilarious that they wasted every body's time and even told them when the deal was over and I was free to go. "I told you so".

dieselbear · Sep 29, 2009

Brickman said: ↑

Truly being a cop is a thankless job. Just like a truck driver.

I thought it was hilarious that they wasted every body's time and even told them when the deal was over and I was free to go. "I told you so".
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Your right. I want to be a fireman. Most people are happy to see you coming.

Brickman · Sep 29, 2009

True.

I was a volunteer fire fighter for 7 yrs and most of the time you are right.

But they do get A LOT of criticism and also a lot of liability if things go wrong.
But then again you know about liability too.

otr500 · Sep 29, 2009

That is a good line but the Supreme Court has upheld that there are instances(reasonable suspicion or probable cause) that a Terry Search or pat can be legally used. Also that an officer, within states where the law provides, can briefly stop a person to ascertain his or her identity. These detainments(detentions) do not constitute an arrest and asking for identity does not invoke the need for a Miranda reading. This, under protection of the Constitution, does not apply to states without state "stop and identify" laws and the law is vague and confusing in most of the 24 states that allow it. As far as I know it has not been argued in the U.S. Supreme Court. It can also be unclear when a "detainment" becomes an arrest. I suspect a fast way of finding out is, when asked, a person provide his or her name, and attemp to leave. If not in a state with stop and identify laws just simply walk away. If the officer demands a stop ask if an arrest is being initiated.
If a person is driving it would be prudent to provide the information or risk certain arrest.

bugsy6 said: ↑

Here is what a lawyer tells us.

Officer, Please understand:
I have the right to have an attorney present if you want to question me or conduct any search of my body or personal effects. I am not giving my consent to any type of search.
If I am under arrest, I wish to invoke and exercise my Miranda Rights. I want to speak to an attorney now. I do not want my personal property impounded, nor do I consent to any impoundment. I request the opportunity to secure my personal effects.
If I am NOT under arrest, please tell me immediately so I may leave.
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