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Thread: Question about search and seasure

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    I have a question about at what point is it legal for LEO to sherch your posessions without your consent.

    This happende last winter (sub zerro weather) I was driving in town with my son, neather of us buckled(Don't get sidetracked on seatbelt laws and saftey please), and got pulled over for expired plates. I showed the cop that I had the stickers for the plates in the glovebox and didn't want to put the on until it warmed up a litle so I could clean the plates and be sure the stickers would stick.

    He saw a gun case sitting on the back dash(wasn't in trunk because the trunk leaks like crazy) an asked what was in it. I told him I wasn't sure but most likley it was a .22 or 20 gauge. He asked me how I could not know what was in it and I told him I shoot alot and have four or five cases and throw the gun into the first case I find.He asked if it was unloaded. I said yes. He than asked if he could check.

    So my question is, at that point could he have checked without my consent since he originaly had prouable cause to pull me over but that was already cleared up and even if it haden't been cleared up would probable cause of no regstration on the car transfer over to probable cause to check weather my gun was loaded? or are those two seperate things and each would require ther own probable causeto allow him to search inside of my gun case?



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    Regular Member AaronS's Avatar
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    IMO, looking at this from the point of the LEO. After seeing that you are breaking the law (stickers not on plate), I would have to say that he/she would have RAS to ask to search.

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    AaronS wrote:
    IMO, looking at this from the point of the LEO. After seeing that you are breaking the law (stickers not on plate), I would have to say that he/she would have RAS to ask to search.
    I don't beliecve they NEED RAS to ASK for anything..... The question becomes , when you refuse do they have the right to inspect anyway, I know Terryv Ohiogives them the ability to do a "wingspan search" for "officer saftey", I believe the question becomes is the back deck of your car within your wingspan?



    Unfortunatly I THINK (and no i can't cite) there is caselaw that pretty much the whole damned car is within your wingspan except the trunk

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    Regular Member opusd2's Avatar
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    If I drive my Grandmas 1971 Buick Electra 225 and the entire car is considered within my wingspan, I welcome them to have Michael Jordon try and reach something off of the rear deck, or even floor behind the front seat.

    When I drive my truck without a cap on, the gun stays inside the cab with me. To me there is no option other than being inside as I don't have a locking tool box out there and I am not just flopping it on the bed floor. Something about losing it, having it stolen, exposed to the elements, and of course the pretty little dents from the truck bed.

    But when it is in the cab, it's not like I keep it on the dash. It's put away. I know, I know... But it's out of reach and I keep a lot of crap in my truck for farm use.
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    IANAL, but I do not see how one unrelated item can lead to another.

    The case was fully closed, nothing sticking out, no spent brass or shotgun hulls laying on the floor and no scent of burned gunpowder in the air.
    I am not seeing probable cause to demand a warrantless search and I think a refusal would have eneded right there if you would have said "NO" .

    Refusal does not give probable, much as refusal to answer questionscan not lead to an obstruction charge.

    lets say you had a hard-sided cooler in the car, the cop suspects there is openalcohol in it, but you do not smell like alcohol, there are no empties laying about, and you were stopped for an unrelated reason. In my opinion, there is no probable cause there either.

    heres one for you, I roast alot of whole hogs in my catering business, I transport them in a body-bag I purchased from a supply house that deals in medical equipment, I store them in the bag from my meat supplier to the business to keep them clean.
    Just becuase I have a body-bag in my truck, that visibly has something in it but no parts are viewable, He cannot search that bag without my consent becuase there is no probable cause. Ifa humanhand was sticking out, or bloody human hair inside the bed of my truck, it would be a different story.

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    Regular Member opusd2's Avatar
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    Carrying a body bag, that's cool. I'd have loved to have one back when I was dating and then make an excuse to open the trunk.

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    For the plain view doctrine to apply for discoveries, the three-prong Horton test requires the officer to be:
    1. lawfully present at the place where the evidence can be plainly viewed,
    2. the officer must have a lawful right of access to the object, and
    3. the incriminating character of the object must be “immediately apparent.”
    See Horton v. California, 496 U.S. 128, 136-137 (1990). See also U.S. v. Legg, 18 F.3d 240, 242 (4th Cir. 1994) (restating the Horton rules)

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    Even if the wing span thing covers the whole car would an officer be allowed to search my car just because he pulled me over for some common traffic violation If there are no other reasons or causes for him to do so?

    If I get pulled over for speeding and the cop want's to search my car I can refuse and he can't do it. Right? If so than having the guncase visable should not make any diffrence, as long as the gun is compleatly covered?

    I also don't think having spent brass laying around in the car should mater eather unless there are laws agenst having scrap metal in you car?

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    Doug Huffman wrote:
    For the plain view doctrine to apply for discoveries, the three-prong Horton test requires the officer to be:
    1. lawfully present at the place where the evidence can be plainly viewed,
    2. the officer must have a lawful right of access to the object, and
    3. the incriminating character of the object must be “immediately apparent.”
    See Horton v. California, 496 U.S. 128, 136-137 (1990). See also U.S. v. Legg, 18 F.3d 240, 242 (4th Cir. 1994) (restating the Horton rules)
    In the situation I poasted I don't think #3 is met, is it?

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    Nutczak wrote:
    IANAL, but I do not see how one unrelated item can lead to another.

    The case was fully closed, nothing sticking out, no spent brass or shotgun hulls laying on the floor and no scent of burned gunpowder in the air.
    I am not seeing probable cause to demand a warrantless search and I think a refusal would have eneded right there if you would have said "NO" .

    Refusal does not give probable, much as refusal to answer questionscan not lead to an obstruction charge.

    lets say you had a hard-sided cooler in the car, the cop suspects there is openalcohol in it, but you do not smell like alcohol, there are no empties laying about, and you were stopped for an unrelated reason. In my opinion, there is no probable cause there either.

    heres one for you, I roast alot of whole hogs in my catering business, I transport them in a body-bag I purchased from a supply house that deals in medical equipment, I store them in the bag from my meat supplier to the business to keep them clean.
    Just becuase I have a body-bag in my truck, that visibly has something in it but no parts are viewable, He cannot search that bag without my consent becuase there is no probable cause. Ifa humanhand was sticking out, or bloody human hair inside the bed of my truck, it would be a different story.
    I am very sorry, but if I were a LEO, and pulled you over for expired plates, and SAW a body bag on your back seat, I would feel compelled to check into why you have it (yes I would look in it ). This kind of cargo is VERY uncommon. This kind of cargo warrants a second look. Your use for it sound like a great idea, and I am sure that after hearing (and seeing) what you use it for, the cop would feel a bit dumb, but happy that he/she looked into it. After all, most people do not move pigs in a human body bag.

    Stickers in your possession, and not on the plate? You do understand that he could have sited you for that alone?

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    AaronS wrote:

    Stickers in your possession, and not on the plate? You do understand that he could have sited you for that alone?

    First have you ever put a sticker on dirty plates when it is 20 below, more than likley you would need a replacment set as soon as it warmed up.

    Second I admited that he had a reason to pull me over, in fact he had several reason to pull me over. What I was asking iscould he have legaly searched my car without my consent just because of that, or would RAS be required if I told him no.

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    If a police officer asks if he can search he doesn't have a RAS. If they have a RAS they don't need to make a request, they just search.
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    I think your answer of "I'm not sure" when he asked what was in the gun case case definately sounds suspicious.

    I think it's a safe bet that most people whoare transporting a firearmknow what it is. Hecould think you were playing dumb because you had something to hide, or if youreally didn'tknow what was in the case that wouldbring up even more suspicions. How could he trust you that it was unloaded if you weren't even sure what it was? The LEO had an obligation at this point to check it out. You mind sharing what the primary reason for your stop was?



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    Expired plates

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    Hillmann wrote:
    He saw a gun case sitting on the back dash(wasn't in trunk because the trunk leaks like crazy) an asked what was in it.
    Hillmann wrote:
    In the situation I poasted I don't think #3 is met, is it?
    3. the incriminating character of the object must be “immediately apparent.
    The legal requirement from statute law and case law frequently cited in this forum is that the gun must be unloaded and encased in a gun case and out of reach. The officer saw in plain view a gun case arguably within reach. It wasn't different from a roach laying on the dashboard.

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    Hillmann wrote:
    AaronS wrote:

    Stickers in your possession, and not on the plate? You do understand that he could have sited you for that alone?

    First have you ever put a sticker on dirty plates when it is 20 below, more than likley you would need a replacment set as soon as it warmed up.

    Second I admited that he had a reason to pull me over, in fact he had several reason to pull me over. What I was asking iscould he have legaly searched my car without my consent just because of that, or would RAS be required if I told him no.
    I had to reorder 3 times until I could get my sticker to stick on my plates this year (I register in January).
    No free man shall ever be debarred the use of arms. Thomas Jefferson (1776)

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    Regular Member opusd2's Avatar
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    protias wrote:
    I had to reorder 3 times until I could get my sticker to stick on my plates this year (I register in January).

    Same here. Mine expired in December and I had to ride the DMV until I finally got it in June. And of course that's with the extra fee for online service. I think next year I will just buy new plates, at least I'd get stickers or SOMETHING to hang on my truck to keep me legal. Maybe if I were to just trade my 22+ mpg 89 GMC 4x4 CLUNKER for a brand new truck that gets less mileage. Maybe that will expedite my registration...
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    Hillmann wrote:
    I have a question about at what point is it legal for LEO to sherch your posessions without your consent.
    This is a very broad question with plenty of complexity in the answers.

    A good place to start is wiki. Their law articles often cite court opinions.

    http://en.wikipedia.org/wiki/Search_warrant

    (scroll down to the section titled "Exceptions.")

    Mind the info about searching a car incident to arrest. I think that may have been restricted under a recent US Supreme Ct. ruling, Arizona vs Gant.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

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    There has been very new caselaw regarding RAS and vehicle searches. I know that Jeff Wagner on 620 had a huge problem with this ruling, but Arizona v. Gant affirmed 4th Amendment rights that had been overlooked in previous cases.

    http://en.wikipedia.org/wiki/Arizona_v._Gant

    United States v. Ross, 456 U.S. 798 (1982),

    New York v. Belton, 453 U.S. 454 (1981),


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    AaronS wrote:
    I am very sorry, but if I were a LEO, and pulled you over for expired plates, and SAW a body bag on your back seat, I would feel compelled to check into why you have it (yes I would look in it ). This kind of cargo is VERY uncommon. This kind of cargo warrants a second look.
    I am sure most anyone would feel compelled, as a matter of fact many officers feel compelled to search without probable cause.

    Lets look at what Doug posted in reference to the Horton rule.

    1. lawfully present at the place where the evidence can be plainly viewed,
      Although a lawful stop, the only thing viewable was a fully closed case with nothing viewable to give probable cause.
    2. the officer must have a lawful right of access to the object, and
      Since there was no P-C, the officer does not have a right of access to the vehicle without consent to search
    3. the incriminating character of the object must be “immediately apparent.”
      A fully closed firearm case is not incriminating, Much as carrying a holstered firearm is not incriminating.

    We can also use the 3-pronged rule of Horton to look at me transporting a body-bag, The same things would apply. Although it is a container commonly used to transport bodies, nothing apparent would be showing if a human was in there. (How many of us use military surplus ammo cans for other purposes? same theory)

    The rare occasions that I am stopped, I lock my doors when I exit my vehicle and place the keys in my pocket. This stops wandering police access into my vehicle under BS reasons. I have seen them stick their upper bodies in open windows, but never open a door to try and get around it being an illegal search. If the windows and doors are closed & locked, it is not going to happen.
    There are a slight few officers out there that may just dropcontraband into your vehicle just to get P-C and/or an arrest if you have made them look bad in the past. Keeping the doors locked will make that impossible.



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    He than asked if he could check.
    As was stated before. If he asks, he doesn't have RAS.

    My advice as always is to just say no.

    There is NO benefit to you in having him search anything. Nothing to gain, only potential to lose.

    I know I'm a broken record on this, but I think its so important I accept that some people will get sick of seeing them:

    Never speak to police, never consent to a search:Best video's you'll ever watch:

    http://www.youtube.com/watch?v=6wXkI4t7nuc

    http://www.youtube.com/watch?v=yqMjMPlXzdA


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