Handing over a Cell phone to LE ?

Bill: on most points, you are spot on. However, it does not create probable cause to decline permission to search a vehicle or even allow access to it. Probable cause must first exist, along with exigent circumstances. The fact of a vehicle being mobile creates the exigent circumstances. But without probable cause, a search may not be initiated, even and especially if the owner/occupant declines permission.

Denial of permission to search does not equal probable cause, even in California. If it did, that deputy who roughed me up would have gone into my truck without my permission while he had me cuffed and stuffed. Despite my fighting him and denying access to my truck, he did not have PC and he knew it. Further, he found out quickly that I knew it too.

Going one step further, the Supreme Court ruled that an innocent person has every right to fight and run away. It's called "personal protection" and falls under fear of harm. That is why I am not currently sitting in the hoosegow under an assault on a peace officer conviction for slamming his hand in my truck door as I was trying to get away from him. I was able to demonstrate a real and immediate fear for my life. Therefore, I had a right to try to escape. Again, he knew it...and even worse, he knew that I knew it, as I demonstrated it to him.

So here's where I stood, in the toughest county in California: I denied permission for a search. He could not enter my truck. I tried to get away from him and even fought tooth and nail to get away, injuring him in the process. Still no PC to search.

I told him specific items and their locations to retrieve from my truck. He was not allowed to touch any other item, even if it was in plain sight. I did not allow him to open a prescription bottle until the CHP were there to observe. A prescription bottle that contained fuses.

The point of this is, even in California, there are procedures that must be followed. The officer has to be able to demonstrate probable cause existed to execute a search before requesting permission or he cannot search. Denial of permission does not, in and of itself, equal probable cause.

 

So I have been doing all these post from a little whole in the wall TS café in NM. To say the conversations around this have been interesting would be an understatement. (And just like many threads on this forum, the conversation go hijacked into one about gun rights. LOL).

A guy left and came back with a three month old ticket from CA. The ticket was for texting and he was caught on video pulling into scales. The officer asked him for his phone. He refused. The officer told him he was getting a ticket for texting while driving. When he started to complain he was told he could prove he was not by showing him his phone or fight it in court with documents sent from his carrier directly to the court. He was texting so he let it drop.

Now the conversation is about how he can beat this in court without the documents. LOL. Gotta love truckstop conversations.

 

As far as the probable cause angle, they have to have PC of a crime being committed for it to work, right? All I've seen is suspicion of violating a regulation, which is not a law. I don't think that whole argument works at all based on that fact.

 

Injun: I would say you had a good lawyer and a cop with a past.

In Terry v. Ohio (1968) the U. S. Supreme Court allowed a "stop and frisk" type of search of an individual without probable cause. This involves a temporary detention of an individual. The individual was not searched for contraband based upon probable cause. He was searched, when momentarily detained, because of safety concerns of the officer.

The Court found that the officer must not necessarily have probable cause for the stop and detention, but rather he must have a reasonable suspicion a crime has occurred or is about to occur. Under a Terry stop, the contact is limited to a search for weapons on the outer clothing.

In Michigan v. Long (1983), the U. S. Supreme Court applied the rationale of Terry to protective searches of automobiles. In that case, a driver was stopped after driving suspiciously and erratically. He was observed driving at a high rate of speed. The officers search the occupant and the automobile and discovered illegal drugs. While the officers did not have probable cause to believe that illegal drugs were in the car, the U.S. Supreme Court and the defendant was convicted of possession of illegal drugs.

The Court in Long expanded Terry to allow searches of places where a weapon could be hidden during temporary detention of a vehicle. While the Court has not specifically addressed searches of a sleeper berth of a commercial motor vehicle, I expect that it would uphold such searches where there has been a lawful stop based upon a reasonable suspicion of criminal activity. This means that a stop can be made based upon something less than probable cause to believe that criminal activity has occurred if there is reasonable suspicion of criminal activity that the officer can articulate. He cannot make a Terry stop on mere whim.

 

My understanding is that Federal Motor Carrier Regulations are laws. I am basing this on some language that the FMCSA using saying something like “this rule will make it illegal for…”. Plus during my DOT audit he would specify that the federal laws are “all here in this book” as he handed me a green book we all carry.

 

A Law enforcement Officer does not need probable cause to ask you for permission or to ask you anything at all. However one does need PC to initiate a stop. But once he has PC to stop he can ask anything you don't have to answer most things but their is no law says he can't ask same as you or i asking any questions we want we may not get an answer but it never hurts to ask. Most everyone has heard a officer say " YOU DON'T HAVE ANY GUNS, KNIVES,HAND GRENADES,BOBMS,DRUG OR ALCOHOL DO YOU" at that point most people say no then the officer will say good you don't mind me searching then do you? most people don't realize it's a question and say i've got nothing to hide go ahead. thats where the officer wanted you to go. Now he can search however most people don't know that even if you give permission you can revoke it unless he finds something which is an arrestable offence or he finds probable cause. Once your under arrest he can search incident to arrest anywhere that is not locked that is accessible from the driver's seat assuming he got you out of driver's seat. anywhere else he needs a warrant. However if he tow's vehicle he can do an inventory search for inventory. so their are ways around the warrant but probable cause needs to exist first.

 

I can activate my phone by pressing a button on my bluetooth headset and issue voice commands to the phone. I never have to touch the phone. The same can be said for in-vehicle systems like Ford's sync. Therefore it is a hands-free system and in compliance with any current legislation.