Cpl and a vehicle search

Grapeshot said:

w/o any RAS or PC that a crime was being committed. No odor of alcohol, no slurred words - just applying for a permit and forced to give up that protection. That really bothers me.

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Read sub-section 4 in the law that Stainless cited. The officer still needs PC that you are under the influence.

Bronson

MichRRConductor said:

I do have a question about this.

If a officer needs probable cause to search a vehicle, but doesn't have any. So he asked you if he can search with your permission. When you refuse the search, does the officer NOW have probable cause?

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If that was the case, the 4th would be meaningless. Thankfully, the courts have ruled clearly on this.

"The claim and exercise of a constitutional right cannot be converted into a crime." Miller v. U.S. 230 F 486 at 489

"Where rights as secured by the Constitution are involved, there can be no rule making or legislation which will abrogate them." Miranda v. Ariz., 384 U.S. 436 at 491 (1966).

Unfortunately we all know that if you refuse a search they will most likely call in a k9 and give it the command for a false "hit", then they can search all they want. You'll have a hell of a time proving that the dog didn't "hit" on your car.

What didn't they find during the illegal search?

detroit_fan said:

Unfortunately we all know that if you refuse a search they will most likely call in a k9 and give it the command for a false "hit", then they can search all they want. You'll have a hell of a time proving that the dog didn't "hit" on your car.

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US v. Place:

Holding you while they called in a K9, absent probable cause, would constitute an unreasonable seizure because it exceeds the limits of a Terry-type investigative stop.

The LEO would need to have a K9 present at the time of the original stop.

I think this is one of the situations where I feel I go against the majority.

When a LEO asks to search your car, Doesn't anyone think to ask Why? Even ask the LEO what he expects to find. Ask him what leads him to believe you have anything of interest in your car. If the LEO doesn't want to play nice then tell him no. If the LEO tells you on the stop that because you have a CPL you gave up your rights, then he wouldn't ask.

If you tell him no then the LEO can do a couple things.
1. Search it unlawfully. Then anything he finds illegal will be thrown out in court under the fruit of the poisonous tree doctrine.
2. Call a K-9 to sniff the car. If the dog Alerts ( and people all dogs alert differently, so don't pull that I didn't see him alert. The Dog can just perk the ears up and look at the handler. Not many dogs I know of Bark or sit down, or paw at the car. ) then the LEO get a free look.
3. Tells you you really don't have a choice because of your CPL and searches anyways, then see 1.
4. Walks away.

Also If you give consent to search, you can stop the search at any moment. You may also limit the scope of the search, Such as saying you may look in my car, but not the trunk, or the bag in the trunk. lol

NavyMike said:

US v. Place:

Holding you while they called in a K9, absent probable cause, would constitute an unreasonable seizure because it exceeds the limits of a Terry-type investigative stop.

The LEO would need to have a K9 present at the time of the original stop.

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UNITED STATES v. PLACE, 462 U.S. 696 (1983)

462 U.S. 696
UNITED STATES v. PLACE
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

No. 81-1617.

Argued March 2, 1983
Decided June 20, 1983

When respondent's behavior aroused the suspicion of law enforcement officers as he waited in line at the Miami International Airport to purchase a ticket to New York's La Guardia Airport, the officers approached respondent and requested and received identification. Respondent consented to a search of the two suitcases he had checked, but because his flight was about to depart the officers decided not to search the luggage. The officers then found some discrepancies in the address tags on the luggage and called Drug Enforcement Administration (DEA) authorities in New York to relay this information. Upon respondent's arrival at La Guardia Airport, two DEA agents approached him, said that they believed he might be carrying narcotics, and asked for and received identification. When respondent refused to consent to a search of his luggage, one of the agents told him that they were going to take it to a federal judge to obtain a search warrant. The agents then took the luggage to Kennedy Airport where it was subjected to a "sniff test" by a trained narcotics detection dog which reacted positively to one of the suitcases. At this point, 90 minutes had elapsed since the seizure of the luggage. Thereafter, the agents obtained a search warrant for that suitcase and upon opening it discovered cocaine. Respondent was indicted for possession of cocaine with intent to distribute, and the District Court denied his motion to suppress the contents of the suitcase. He pleaded guilty to the charge and was convicted, but reserved the right to appeal the denial of his motion to suppress. The Court of Appeals reversed, holding that the prolonged seizure of respondent's luggage exceeded the limits of the type of investigative stop permitted by Terry v. Ohio, 392 U.S. 1 , and hence amounted to a seizure without probable cause in violation of the Fourth Amendment.
Held:
Under the circumstances, the seizure of respondent's luggage violated the Fourth Amendment. Accordingly, the evidence obtained from the subsequent search of the luggage was inadmissible, and respondent's conviction must be reversed. Pp. 700-710.

• (a) When an officer's observations lead him reasonably to believe that a traveler is carrying luggage that contains narcotics, the principles of Terry and its progeny permit the officer to detain the luggage temporarily to investigate the circumstances that aroused the officer's suspicion, [SIZE=-1][462 U.S. 696, 697] [/SIZE]provided that the investigative detention is properly limited in scope. Pp. 700-706.

• (b) The investigative procedure of subjecting luggage to a "sniff test" by a well-trained narcotics detection dog does not constitute a "search" within the meaning of the Fourth Amendment. Pp. 706-707.

• (c) When the police seize luggage from the suspect's custody, the limitations applicable to investigative detentions of the person should define the permissible scope of an investigative detention of the luggage on less than probable cause. Under this standard, the police conduct here exceeded the permissible limits of a Terry-type investigative stop. The length of the detention of respondent's luggage alone precludes the conclusion that the seizure was reasonable in the absence of probable cause. This Fourth Amendment violation was exacerbated by the DEA agents' failure to inform respondent accurately of the place to which they were transporting his luggage, of the length of time he might be dispossessed, and of what arrangements would be made for return of the luggage if the investigation dispelled the suspicion. Pp. 707-710.

​

NavyMike said:

US v. Place:

Holding you while they called in a K9, absent probable cause, would constitute an unreasonable seizure because it exceeds the limits of a Terry-type investigative stop.

The LEO would need to have a K9 present at the time of the original stop.

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I would love to agree with you, but all he has to do is say i smell weed(something impossible to disprove) and then he can hold you there till the dog comes. They do it everyday, all of the dogs are trained to false hit and if a cop wants to search your car their going to.

detroit_fan said:

I would love to agree with you, but all he has to do is say i smell weed(something impossible to disprove) and then he can hold you there till the dog comes. They do it everyday, all of the dogs are trained to false hit and if a cop wants to search your car their going to.

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Well if they smell weed, that's PC and they wouldn't need a dog to alert..Correct????

Hopefully you have recorded the stop.

true they cant hold you forever to wait for a K-9 but 10-15min isn't unreasonable, and there is no Hard time limit on the books on how long Reasonable is. Thats for a jury to decide.

Also, True, all the LEO has to say is he has Reasonable suspicion to hold you for a K-9. Once again you COULD be better off asking the LEO whats going on and try to get some info out to help you better access the situation.

Clarification Please, RAS for detention versus PC.

Hello All,

As a Kalifornia resident and part-time L'Anse resident, I love reading posts from red states. You all discuss situations regarding your "shall issue" CPLs and the such. We, in the People's Republic, are worried about our deep blue state banning UOC (Our legistlature is working on just such a bill). Wow, my wife and I are planning to retire to MI. I can't wait!

Clarification:

Terry v. Ohio details the difference between an investigative detention and PC for arrest.

If LEO has PC, he can arrest you. It is a done deal.

If LEO can articulate reasons for suspecting that a crime is afoot, he has "reasonable suspicion" or RAS. Under this circumstance, he can detain you for further investigation. He can shackle you and perform a frisk; a frisk limited to a search for weapons, as LEO has the right to protect himself. Duran v. Douglas, 9th Circus, explains that LEO needs reasonable belief that a crime or dangerous activity is afoot to detain.

If LEO is on a "fishing expedition" and searches you or your car based on his "fishing" for an infraction to nail you with, especially after you have notified LEO that "I do not consent to any searches of my person or belongings" and you finish with "am I free to leave", LEO has violated your 4A rights. You are "detained" if you feel you are not free to leave (Michigan v. Chestnut, SCOTUS).

42 USC 1983 creates the procedure to sue LEO for his law-breaking. With "clearly established" case law relating to enumerated rights, LEO may lose his qualified immunity.

I told one LEO who illegally demanded my ID while I was sitting in a chair at a city park while reading court documents for a pending case, that if he illegally detains me and forces me to provide ID, that I would ask the judge to force LEO's wife to write the punitive damage award check to me as I would sue under 42 USC 1983.

"Officer, I will say nothing with or without my lawyer." Talk to a judge officer! If your lawyer allows you to answer questions in a booking or interogation room, fire him!

Remember US. v. Ubilles: The court noted that the situation was no different if police were notified "that Ubilles possessed a wallet..." The court compared a wallet to a gun!

In US v. King, the 10th Circuit ruled that a firearm alone did not create a reasonable suspicion of criminal activity, and they ruled that "permitting such detentions would render the Fourth Amendment functionally meaningless."

Thanks Michigan, (and how I long for the day when I live in a free state!)

Carry-on!

markm

jeremy05 said:

true they cant hold you forever to wait for a K-9 but 10-15min isn't unreasonable, and there is no Hard time limit on the books on how long Reasonable is. Thats for a jury to decide.

Also, True, all the LEO has to say is he has Reasonable suspicion to hold you for a K-9. Once again you COULD be better off asking the LEO whats going on and try to get some info out to help you better access the situation.

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Bringing in a dog cannot extend the length of the stop.

If the officer lacks RAS of drug trafficking and yet delays the traffic stop to wait for the arrival of the dog, the detention is illegal. It becomes illegal when it continues past the time needed to complete a lawful traffic stop.

If the leo 'claims' he smelt dope and then the dog does not find it, he is back to having no RAS. Hence anything else found is inadmissable.

Further, juries do not decide what is admissable as evidence, so it would not be up to them to decide if the seizure (wait for a dog) was reasonable/legal.

Come on People you can spin this scene a million ways.

When it comes down to it, LEOs are going to do what they want, there are millions of ways to get into a car, and if they decide to go the illegal route, its tossed out in court.

the way I see it is that LEOs assume people don't have the time or money to take them to court for violations of their rights. We all seen the OC videos and stops on this site, and 99.9% of the time nothing is done about it, just talk.

Venator said:

Well if they smell weed, that's PC and they wouldn't need a dog to alert..Correct????

Hopefully you have recorded the stop.

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True, was just trying to point out that if they want to search they are going to find a way.

MarkBofRAdvocate said:

Thanks Michigan, (and how I long for the day when I live in a free state!)

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I'm pondering a move to NH I'm the next 10 years, provided they start issuing an optional CPL for the purposes of reciprocity, like Alaska.

I'm pondering my move as a part of the Free State Project.

TheQ said:

I'm pondering a move to NH I'm the next 10 years, provided they start issuing an optional CPL for the purposes of reciprocity, like Alaska.

I'm pondering my move as a part of the Free State Project.

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Why do you think that New Hampshire has no permit system or reciprocity agreements?
http://www.nh.gov/safety/divisions/nhsp/ssb/permitslicensing/plupr.html

TheQ said:

I'm pondering a move to NH I'm the next 10 years, provided they start issuing an optional CPL for the purposes of reciprocity, like Alaska.

I'm pondering my move as a part of the Free State Project.

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i believe vermont,alaska and arizona are the only places that currently do not require a cpl,but vermont is the only one that does not issue any permit...and i believe south dakota is putting a bill through right now for the same thing


Its sad that this thread is around...the way it should be is that we live in a world where we dont have to worry about LEO's breaking the law or trying to talk the law abiding out of they're rights...its a sad thing that our country has come to the point where one must discuss with others how to handle unlawful/unprofessional conduct by law enforcement officers...

Grapeshot said:

Why do you think that New Hampshire has no permit system or reciprocity agreements?
http://www.nh.gov/safety/divisions/nhsp/ssb/permitslicensing/plupr.html

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My bad! Got NH messed up with Vermont. NH, here I come!

Supreme Court Illinois v. Caballes, 543 U.S. 405

Page 11
The permissible scope of a routine traffic stop is clear: A

motorist reasonably expects that she will be detained briefly

while the police officer asks for her name, checks her

driver’s license, and properly documents her alleged

violation. She also reasonably expects that she will then be

allowed to resume her journey, without being subjected to an

invasive, unrelated drug investigation.

The deployment of drug-detection dogs cannot be justified

by the legitimate investigative needs of a routine traffic stop.


Page 24
at

the sole discretion of a street-level police officer acting on his

own initiative, is precisely the kind of “standardless and

unconstrained discretion” that this Court has previously

condemned. Edmond, 531 U.S. at 39, quoting Prouse, 440

U.S. at 661.

In sum, the use of a drug-detection dog at a routine traffic

stop, even where the stop itself is based on probable cause,

impermissibly alters the nature and quality of the stop.

Given the absence of any logical relationship between traffic

violations and drug offenses, the transformation of a traffic

stop into a drug investigation is simply arbitrary. Absent at

least reasonable suspicion, such a drug investigation cannot

withstand Fourth Amendment scrutiny.


Page 36
Drug-detection dogs

have proved to be less reliable and disciplined than the Court

thought in Place, where it assumed that canine sniffs

categorically “do[] not expose noncontraband items.”‘ 462

U.S. at 707. In fact, research shows that the reliability of

dogs varies widely based on several factors, including the

degree of its underlying training and the skill and attitude of

its handler. Another significant factor is the randomness of

the inquiry, with false alerts being much more likely in cases

in which individualized suspicion is absent.


Here is the PDF
http://www.aclu.org/files/FilesPDFs/caballes.pdf

Was focused on 2A rights, now focused on 4A.

lil_freak_66 said:

i believe vermont,alaska and arizona are the only places that currently do not require a cpl,but vermont is the only one that does not issue any permit...and i believe south dakota is putting a bill through right now for the same thing


Its sad that this thread is around...the way it should be is that we live in a world where we dont have to worry about LEO's breaking the law or trying to talk the law abiding out of they're rights...its a sad thing that our country has come to the point where one must discuss with others how to handle unlawful/unprofessional conduct by law enforcement officers...

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Lil_freak,

Your point is well taken. I have become more focused on 4A than 2A lately. The lawlessness that modern LEO acts with is astonishing. Without the Bill of Rights and some strict constructionist judges, we would really be screwed. If BG LEO would follow 4A, our gun rights would be much more secure.

"Government is not the answer, it is the problem." (The Gipper) "Government is a neccessary evil; it must be controlled with a firm death grip." (MM, 2011)

markm