Watchman wrote:bob wrote:There is no "reasonable suspicion" leeway. The supreme court enumerated the conditions necessary to do a search.
My understanding that was all that was needed to justify a search. And a one-line comment in the incident report would be all one needs to describe that.
That is definitely incorrect. The supreme court gave two exceptions that are spelled out, with qualifications needed:
(1) you have a strong suspicion that key evidence in the vehicle will be lost if it is not searched, and this evidence must be related to the reason the suspect is being arrested. But even in this case, the search is limited to exactly what is suspected of being present, and that does not include things like drugs, guns, etc that are unrelated to the arrest.
(2) you fear for your safety. But after they laid out the exceptions, this one appears to be impossible to meet. You must fear for your safety. You must not have restrained (using cuffs or locking the suspect in your car) since in that case they would not pose any danger of getting back into the vehicle to access a weapon. If you pull them over, and they are standing beside their car, and you are stupid enough to turn your back on them to search the car, well, that's another issue. If you have them restrained, or if there is a second officer present to control them while you search, then you can't search without obtaining a warrant, again requiring probable cause, and the warrant will be specific as to what you are searching for. Find a small bag of drugs, or a bong, or whatever, and it can't be used as evidence.
Here's a case from personal knowledge. Friend of mine is an attorney, was handling a DUI case for someone I knew.
Circumstances leading up to arrest: Person was driving, and crossed just over a lane marker. No speeding or anything. Officer puller suspect over, was not satisfied with field sobriety test (told suspect to hold foot 12" off the ground, suspect wore high-heels and removed them for the test, and was not wearing contacts (good distance vision poor vision up close. Suspect could not get close enough to 12" to satisfy the officer.)
Suspect was arrested, placed in back of police car, locked in, and two officers completely ransacked vehicle. Found in the back seat, under a lot of old junk, a non-sealed (closed, but seal broken) bottle containing alcohol. Found in the floor a plastic zip-lock bag with a few particles of what was assumed to be mary jane. Suspect charged with DUI, improper lane change, violation of open-container law, and drug posession (personal use). Suspect refused breath test.
While this was pending, I had noticed the supreme court decision and told friend. He read it, said "wow". He then had the entire case thrown out...
1. No evidence of being intoxicated was available (no breath test, remember). People with suspect prior to arrest said only 1 can of beer had been consumed. Others in the jail were questioned by lawyer and they reported "did not appear drunk at all to me." Lawyer asked for video to support the initial stop for DUI. Nada. Judge said "crossing a lane marker once is not probable cause for suspecting anything except an improper lane change."
2. Drug find was ruled inadmissible due to supreme court decision ruling the search as improper.
3. Open container was ruled inadmissible, same reason.
4. Improper lane change was tossed as no lane change occurred, just crossing about 1' over the line while adjusting the radio channel at very slow speed when taking off from a red light.
Since, there has been a ton of publicity about this. As expected, LEOs disagree, as most seem to think they have gestapo-like power and can look where they want, when they want, constitution or not.
This was Arizona vs Gant and is easy to find.
You have piqued my curiosity to see how Departmental SOP has changed since this ruling. Before this, Auto searches for vehicles being towed as a result of an arrest were automatic for "Safety Reasons." My gosh, who would want to send a portable Meth Lab or who knows what else to the Vehicle Impound Lot. Traffic Stops are one of the most bizarre things you can do. You never know if the driver you are stopping is “pure as the driven snow,” or someone who just killed his wife and is ready to confess that to you.
Absolutely no disagreement there. But "can be" and "is" are quite different, and presumption of innocence still applies.
bob wrote:I run over someone, you pull me over and arrest me for vehicular assault and such. Fine. But you can't go in my car. Or you can, but nothing found will ever see the courtroom jury. which is as it should be.
Be ready for the surprise of your life the next time you get pulled over for "vehicular assault" and there is something in your vehicle that "shouldn't" be there. And be prepared to hire a very expensive attorney with the hopes he can suppress whatever was found.
There won't be any search, that is for sure. See the supreme court decision. What could be _in_ my car that would serve as evidence that I ran over someone? And since there is nothing, a search is clearly illegal. I know cops are not going to like this, and many are not going to abide by it, the main effect is to make a lot of attorneys a lot of money getting people off when they should not. If a warrant is obtained, then there is no problem. But by getting impatient, diving inside to search the vehicle, the case goes south and a potential bad guy goes free.
bob wrote:Why not extend that to my workplace? To my home? To my friend's homes? etc? It is a gestapo-like idea.
Obviously in the 30 years car searches have taken place it hasn't degenerated into something as you describe. I'm just wondering if the four dissenting Supreme Court Justices felt it was Gestapo-like too.
The problem with the court, and with the constitution, is that the writers of the constitution expected good judgement to be used so that the constitution did not have to become a 10,000 page document, spelling out every exception, every requirement, every aspect, so that there is absolutely no room for interpretation. And conservative judges tend to favor law enforcement. Liberal judges tend to favor defendants. Very similar to the Roe vs Wade issue that will continue to be discussed every time a new justice is appointed.
As far as interpretation, there are those that would say "this wording means this", and there are others that would say "but given the right circumstances, with a full moon, on a 13th day of the month, you _could_ interpret those words to mean something else." remember the famous "depends on what you mean by 'is'" a few years back?
I would interpret that part of the bill of rights a bit differently, but not by much. I believe you would _never_ have the right to search, without probable cause. And that probable cause gives you the right to obtain a search warrant, and to search whatever it is that the warrant applies to, for explicitly what the warrant specifies. Looking for a murder weapon? You know how the victim was killed, so you look for only things that could produce that type of injury (gun, or knife, or whatever.) But that is _all_ you could search for
Here's an ugly example. Son of a friend of mine got into what turned out to be minor trouble with law enforcement. They issued a warrant for his arrest, but he had gone away for a couple of weeks during the Summer. Cops noticed phone calls from my friend's house to mine, so they came over with an arrest warrant for this person and asked if they could look for him in our house. I said sure. I went with one, my wife went with another. They simply checked the rooms, under the beds, in the closets, but the one with my wife picked up a cordless phone while she wasn't looking and scrolled thru the caller ID log. When she saw him, she told him to put it down, that was not part of the warrant. They left. They then went to other friends of ours, including a couple of people where she worked, simply because their phone number was in our caller id box. Told them they suspected we might be involved in hiding this kid to avoid arrest.
I thought long about filing both a civil suit and federal civil rights violation with the US attorney, but decided I didn't want the hassle. That is poor law enforcement, it is illegal, and it should be.
bob wrote:Based on your comments, I am not sure you have been schooled "enough" it would seem. But at least the US Supreme Court agrees with me which makes any other opinion completely moot on this issue.
Fine... the day you hold classes to school me, just make sure you notify the other 4 Justices that dissented on this issue so we all can be schooled together.
Don't need 'em. Last time I looked at the US Constitution, the supreme court has 9 justices, and a majority is all it takes. 5 is bigger than 4, last time I looked, which makes the issue "decided" (in their terminology).
Now to the crux. There are lots of laws I don't like. But I obey them. I have to pay my taxes, although I don't like doing so. I obey the laws, as they are written by the legislature and interpreted by the courts. I expect LEOs to do the same. I am disappointed quite often in that expectation, unfortunately. The bad thing is, they are only hurting themselves in the process, by losing critical evidence due to faulty searches.
bob wrote:Opinions like that make me want to puke. Sorry for my slang. Everyone that believes such nonsense ought to be locked up themselves, IMHO.
Oh no problem... you just demonstrated quite clearly to me (along with your drumhead justice comment... where did that come from???) that you have absolutely no clue what I am talking about. That is probably my fault.
Drumhead justice... practiced during the civil war. Every evening the commanding officer would sit on one of the drums from the drum corp, and address issues from conduct to criminal, and dispense justice as he saw fit. No trial, no lawyers, to jury. And his judgement was final. Particularly since quite often it involved a bullet in the head of the person that had committed a crime bad enough to justify the death penalty. In short, in this case, police officers decide on the spot that the person is guilty, and then set about trampling his civil rights by searching his vehicle to see what they can find, as opposed to searching to look for a specific thing. Hope that is clearer. It's not necessarily a derogatory term, it is a reference to "instant justice with the same person being judge, jury and executioner".
If I misunderstood your comment, I'm certainly willing to apologize for doing so.
However, you said that police would arrest someone with zero evidence whatsoever. Wife says husband violated court order. No witnesses. Husband was home. No witnesses. he-said. she-said. How can on in good conscience arrest _anybody_ there? that was what made me puke. Presumption of innocence just went out the door. The magistrate / judge that issued the arrest warrant should be arrested for malfeasance, IMHO. Now the husband has to deal with the arrest, which will _always_ be on his criminal record now, of course, arrange for bail, hire an attorney, defend himself and win the case, then hire another attorney and go after everyone for false arrest, false police report, etc. None of which does _anybody_ any good. Courts. Police. Victims.
Having served on juries multiple times??? What? That gives you an understanding of Law Enforcement? I understand what you are doing, but really, you might as well make the statement, "I can swim the English Channel because I know how to get in and out of my bathtub."
It gives me insight into the _inside_ of the justice system, after the police are done. I've seen what is allowed and not, as objections are raised, the jury is told what it can or can not consider, etc.
Your jury comments and "I have relatives in law enforcement" and "the sheriff" would be like me coming into a programming class of yours and when you ask, "who knows something about programming?" And I reply, "Well, my brother has a computer! Not only that! I have seen him use it!" You would throw an eraser at me and would hope I drop your course!
bob wrote:Preponderance means majority. To prevail you have to provide evidence. That's my point. Absolutely _none_ has been provided here. And I do mean _absolutely_. There is no preponderance. there is no evidence whatsoever. Get my point?
I just said "51 to 49." What else did you think I meant by that? The "51" is the majority. And I said you can't even begin to hold to that high of a standard as that is something that applies in Civil Court where there are Governments and Laws and... *sigh* Maybe with some sort of Governing Body that actually had teeth, PoE would work... but I don't know...
Ever been on a jury for a criminal case? Every time I have done this, 5 times to date (I am 61 years old) the judge always charges the jury with guidelines, and the first is always about the presumption of innocence, and that the state must prove their case "beyond a reasonable doubt." This has happened every time I have served (civil cases, where I have only been on two) are different as you mentioned. So at least in the trials where I have been involved, POE was alive and well, and based on cases making the news in the Birmingham AL area, it is still there. The old "better to release 100 guilty people rather than jailing 1 innocent person" still applies, IMHO. I know we all know of cases where we'd like to see that not be the way things work, And my granddad and dad used to mention on occasion that while they don't agree with some things that happen, they risked their lives to defend this system (one in WW1, other in WW2 and Korea).
Man... all this bickering... good thing my family waits till the weekend for the Big Turkey Dinner or I would have been chewing the Rolaids responding to this.
Nothing on the internet is worth that kind of worry.
