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Thread: Search, consent, PC, etc.

  1. #1
    Regular Member GlockRDH's Avatar
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    Search, consent, PC, etc.

    I was reading a thread on FB..got me wondering...whats the definition of 'probable cause'? At what point in the process (traffic stop/arrest/etc) does the officer haveto demonstrate that he/she HAD PC to detain and search your vehicle/person? Seems to be to be REALLY vague. Does 'I thought I saw something that may have looked suspicious in his car' allow for a search based on PC?

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    Campaign Veteran skidmark's Avatar
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    The cop is not required to prove he had PC or RAS until he gets into court and the defense attorney challenges the assertion that he had it.

    Now, if you are wondering what the various courts have said constitutes PC or RAS, that's a completely academic study because, as we all know, "each case is different".

    The odds of you beating a rap on the side of the street because you convinced the cop he did not in fact have PC/RAS are worse than the odds of winning the lottery.

    stay safe.
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  3. #3
    Herr Heckler Koch
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    CR-215 Probable Cause Statement and Judicial Determination

    CHAPTER 970 CRIMINAL PROCEDURE — PRELIMINARY PROCEEDINGS
    970.03 Preliminary examination. (1) A preliminary examination is a hearing before a court for the purpose of determining if there is probable cause to believe a felony has been committed by the defendant. A preliminary examination may be held in conjunction with a bail revocation hearing under s. 969.08 (5) (b), but separate findings shall be made by the judge relating to the preliminary examination and to the bail revocation. More follows.

    Probable Cause Statement and Judicial Determination

    http://www.wicourts.gov/formdisplay/...=1&language=en
    Last edited by Herr Heckler Koch; 10-31-2011 at 08:55 AM.

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    IMO OP your questions are irrelevant and potentially even dangerous to your well being.

    Never question a LEO in the street, never resists and always assert your rights, unless you don't mind him using force to get you to comply that is. Also never ever talk to them.

    Be polite, friendly, calm and respectful and simply say "I do not consent to any searches or seizures and I'd like to remain silent without my attorney present. Am I free to go?" Anything outside of that can and will only hurt you.


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    Btw I'm not saying you should let the LEOs do to you w/e and not fight back. All I'm saying is that you shouldn't do it without the presence of your attorney and you shouldn't do it in the streets where you have 0% chance of winning an argument with them.

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    Founder's Club Member Brass Magnet's Avatar
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    Quote Originally Posted by hazek View Post
    IMO OP your questions are irrelevant and potentially even dangerous to your well being.

    Never question a LEO in the street, never resists and always assert your rights, unless you don't mind him using force to get you to comply that is. Also never ever talk to them.

    Be polite, friendly, calm and respectful and simply say "I do not consent to any searches or seizures and I'd like to remain silent without my attorney present. Am I free to go?" Anything outside of that can and will only hurt you.
    I don't see anything irrelevent or dangerous about his questions. He's not implying what he would do or anything.

    Quote Originally Posted by hazek View Post
    Btw I'm not saying you should let the LEOs do to you w/e and not fight back. All I'm saying is that you shouldn't do it without the presence of your attorney and you shouldn't do it in the streets where you have 0% chance of winning an argument with them.
    There are plenty of things you can do without your attorney present, calmly and politely as you implied, that don't constitute getting in an argument.

    Quote Originally Posted by GlockRDH View Post
    I was reading a thread on FB..got me wondering...whats the definition of 'probable cause'? At what point in the process (traffic stop/arrest/etc) does the officer have to demonstrate that he/she HAD PC to detain and search your vehicle/person? Seems to be to be REALLY vague. Does 'I thought I saw something that may have looked suspicious in his car' allow for a search based on PC?
    All you are able to do is try to ascertain whether or not RAS or PC exists. As Skid said, the enforcer only has to articulate his suspicion or PC to a court and not to you. Did he ask you if he could search your car? Most likely he does not have PC in this case because he asked and your answer should always be no. Heck, the officer could even tell you (lie) that he has PC and then ASK to search your car. The answer should still be no. If they are going to search your car because they think they have PC they'll search it whether you say no or not.

    If the officer obviously is going to do it anyway or starts "ordering" you; they think they have PC and you should just make it clear that you don't consent to his search without impeding him or resisting in any physical manner.

    So basically, always say no when asked, but always comply with orders while saying that you don't consent. That should keep you out of trouble for everything except "contempt of cop" which anyone who asserts their rights is in danger of.
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    Quote Originally Posted by Brass Magnet View Post
    I don't see anything irrelevent or dangerous about his questions. He's not implying what he would do or anything.
    I disagree. My point was that those questions shouldn't even be on OPs mind. What he should be asking instead is how do I assert my rights and how do I behave in a LEO encounter. Thinking about what LEOs can or cannot do can never ever help him in the street and during an encounter because the LEO's can ultimately use force to get his compliance. Thinking about how to assert his rights and how to behave to best avoid harm to his well being on the other hand can help him immensely.

    Quote Originally Posted by Brass Magnet View Post
    There are plenty of things you can do without your attorney present, calmly and politely as you implied, that don't constitute getting in an argument.
    You need to watch the video I linked IMO. Never talk to the police without a lawyer, ever.

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    Another good guide:



    And:

    EDIT: Pay attention at the 16:36 mark, it tells you exactly what my post said. "Don't try to figure out whether or not the officer has probable cause to legally search you, you always have the right to refuse searches."

    Last edited by hazek; 10-31-2011 at 11:50 AM.

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    Founder's Club Member Brass Magnet's Avatar
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    Quote Originally Posted by hazek View Post
    I disagree. My point was that those questions shouldn't even be on OPs mind. What he should be asking instead is how do I assert my rights and how do I behave in a LEO encounter. Thinking about what LEOs can or cannot do can never ever help him in the street and during an encounter because the LEO's can ultimately use force to get his compliance. Thinking about how to assert his rights and how to behave to best avoid harm to his well being on the other hand can help him immensely.



    You need to watch the video I linked IMO. Never talk to the police without a lawyer, ever.
    Well, his question opens up a dialogue to discuss exactly what you are talking about. I see no problem with it. Thinking about what LEO's can or cannot do is vitally important in knowing how you can exercise your rights.

    I've watched the video at least twice before among many others and I didn't advocate talking beyond saying "NO" or saying "I don't consent". "Am I free to go" is another gem.
    Last edited by Brass Magnet; 10-31-2011 at 11:38 AM.
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    Regular Member GlockRDH's Avatar
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    I think those are legitimate questions...i now know that the officer doenst have to prove anything until court...which i guess makes sense...one cant argue with them in the field... I believe i DO know how to behave in a LE encounter...dont talk to cops. But was just curious about the nuances of 'pc' 'ras' and such...

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    Regular Member McNutty's Avatar
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    Quote Originally Posted by NavyLCDR View Post
    For any other search, not fitting the above, either consent or a search warrant must be obtained. For example, let's say during a routine traffic stop for speeding, a K-9 already present with the officer hits on the trunk of the vehicle indicating the presence of drugs. The dog hitting on the trunk of the vehicle establishes probable cause for a search. However, since there is no danger that whatever is in the trunk will be lost or destroyed once the subjects in the vehicle are detained, either consent or a search warrant must be issued to legally conduct the search of the trunk. Probable cause by itself does not provide a basis for a warrantless search without consent. Probable cause provides the basis for law enforcement to obtain a search warrant. Now, if the detained subject sets the car on fire after the dog hits on the trunk - that now provides the basis for a warrantless search to be conducted without consent.
    I'm not 100% sure about this statement - unless the law has recently changed on this point. There clearly is a motor vehicle exception that permits a LEO during a stop to search without a warrant if PC exists that the vehicle contains contraband. If, during a routine traffic stop the LEO develops PC that the trunk contains contraband, the LEO generally can search the trunk without the first obtaining a warrant. The search would be limited to the part of the vehicle to which PC has attached. The vehicle exception was carved out because there is this perceived exigency that evidence could be lost if the individual is permitted to drive off and the argument that we have a lesser expectation of privacy in our vehicles than in our homes. I'm not saying I agree with this but this is what courts have said. This may differ slightly from state to state - in some states a LEO might need to show that there simply wasn't time to first obtain a warrant. If the person is actually arrested, say for operating with a revoked license, I don't know if the same thinking would apply. What would the LEO care anyway, the car will be towed and its contents likely inventoried.

    Whether they think they have PC or not, LEOs will always ask for consent because once they have your consent they can search and any questionable PC is off the table as an issue once you are in court (unless you could argue your consent wasn't freely and voluntarily given - good luck with that).

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    Founder's Club Member Brass Magnet's Avatar
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    ^^^^^^^^^
    An even more interesting question comes up when an officer believes he has RAS that some contraband is in the trunk but no PC yet and the dogs aren't immediately available. He then calls for the K9 unit while keeping you detained. IIRC Terry v. Ohio says they can only detain you for a short time period but that actual period of time has never been thoroughly fleshed out to my knowledge. They've decided when it's way too long or when it's reasonable but put no exact number on it. So, it's vitally important for you to keep track of the time you would wait in this situation as later it can be brought up in a civil rights lawsuit for unlawful detainment.
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    Regular Member MKEgal's Avatar
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    Quote Originally Posted by NavyLCDR
    let's say during a routine traffic stop for speeding, a K-9 already present with the officer hits on the trunk of the vehicle indicating the presence of drugs. The dog hitting on the trunk of the vehicle establishes probable cause for a search.
    Why doesn't the dog sniffing constitute a search?
    They're considered officers for every other reason - hitting a cop dog is treated like hitting a human cop.
    So why would a cop dog searching my car by sniffing be any different than a human cop searching my car with, say, an X-ray machine, thermal imager, or one of the things they use at the airport that detects traces of explosives?
    Last edited by MKEgal; 10-31-2011 at 01:13 PM.
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    Quote Originally Posted by MKEgal View Post
    Why doesn't the dog sniffing constitute a search?
    They're considered officers for every other reason - hitting a cop dog is treated like hitting a cop.
    So why would a cop dog searching my car by sniffing be any different than a human cop searching my car with, say, an X-ray machine, thermal imager, or one of the things they use at the airport that detects traces of explosives?
    Good question. I found this. http://writ.news.findlaw.com/dorf/20050201.html

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    Regular Member MKEgal's Avatar
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    Holy cow... and from SCOTUS no less.
    By a 6-2 margin... the Court ruled that the dog sniff was not a search. [Souter & Ginsberg dissented]
    ...

    reasoned that a sniff by a dog trained to seek out illegal drugs is not a search because the sniff can only reveal evidence of illegal activity. Thus, unlike conventional searches of a dwelling or personal property, the dog sniff does not reveal any information that people have a right to keep private.

    That reasoning seems to imply, too, that the police do not need any individualized suspicion to subject people themselves--and not just their cars--to the humiliation and fear that may accompany a dog sniff.
    ...
    according to the majority opinion of Justice Stevens, there is no reasonable expectation of privacy in illegal activity...
    A trained police dog either alerts in the presence of illegal drugs, or does not alert in their absence.
    Unless signalled by the handler.

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    Founder's Club Member Brass Magnet's Avatar
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    Quote Originally Posted by MKEgal View Post
    Unless signalled by the handler.
    Yes, I seem to recall a video in which a gent asserting his rights is told that a dog alerted to his car in an effort to get him to consent at an unconstitutional border checkpoint that was way the heck away from the border.
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    I saw a video on Youtube that featured a former DEA agent who advised that those running drugs should keep a cat in the car. Once the dog sees the cat, the dogs drug sniffing programming is temporarily paused and the dog will do nothing else but look for the cat. lol

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    Quote Originally Posted by Brass Magnet View Post
    ^^^^^^^^^
    An even more interesting question comes up when an officer believes he has RAS that some contraband is in the trunk but no PC yet and the dogs aren't immediately available. He then calls for the K9 unit while keeping you detained. IIRC Terry v. Ohio says they can only detain you for a short time period but that actual period of time has never been thoroughly fleshed out to my knowledge. They've decided when it's way too long or when it's reasonable but put no exact number on it. So, it's vitally important for you to keep track of the time you would wait in this situation as later it can be brought up in a civil rights lawsuit for unlawful detainment.
    This is an interesting question because when a Terry stop or investigative detention continues for too long --> a constructive arrest has occurred and this is an arrest absent PC meaning that it is illegal and any other evidence obtained by the police after that constructive arrest has occurred would likely be considered fruit of the poisonous tree and should be suppressed by the court. Unfortunately, the amount of time deemed reasonable for a detention will vary based on the facts. You could be stopped on the street for one issue but if RAS develops during the course of that brief detention, the time could be extended for the officer to further investigate the new RAS that has developed. This, obviously, cannot go on for an indefinite time. The officer has only enough time to reasonably investigate to determine whether or not PC exists.
    Last edited by McNutty; 10-31-2011 at 03:55 PM.

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    Does anyone have a link to the case law that clearly states that you need to fight to defend your rights, because if you just remain silent and do not defend your rights it is seen as waiving them?

    I have read it, I had it saved on an older laptop that I do not use anymore and have not been able to find it since.

    In basic terms, the courts have determined that you need to proactively defend your rights, or you are seen as voluntarily waiving them.

    So I call BS on standing idly by and letting a cop do a search. I object very clearly, and very loudly. You may get lucky in court by standing idle while a cop violates your rights, but you'll have a much better chance in court by fighting tooth & Nail to defend your rights during the stop should something be found that you should not have. I have been cuffed and stuffed in the back of a cruiser swearing like a drunk sailor to stay the "F" out of my vehicle, and I will do it again if the unfortunate situation ever happens again.

    They disrespect me or my rights, they deserve and will get no respect from me!

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    Quote Originally Posted by Nutczak View Post
    Does anyone have a link to the case law that clearly states that you need to fight to defend your rights, because if you just remain silent and do not defend your rights it is seen as waiving them?

    I have read it, I had it saved on an older laptop that I do not use anymore and have not been able to find it since.

    In basic terms, the courts have determined that you need to proactively defend your rights, or you are seen as voluntarily waiving them.

    So I call BS on standing idly by and letting a cop do a search. I object very clearly, and very loudly. You may get lucky in court by standing idle while a cop violates your rights, but you'll have a much better chance in court by fighting tooth & Nail to defend your rights during the stop should something be found that you should not have. I have been cuffed and stuffed in the back of a cruiser swearing like a drunk sailor to stay the "F" out of my vehicle, and I will do it again if the unfortunate situation ever happens again.

    They disrespect me or my rights, they deserve and will get no respect from me!
    Are you talking about verbally saying you are remaining silent or something else?
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    Quote Originally Posted by protias View Post
    Are you talking about verbally saying you are remaining silent or something else?
    the case law I am referring to states you must be very verbal about defending your rights, or you are considered to voluntarily be waiving them

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    Quote Originally Posted by Nutczak View Post
    the case law I am referring to states you must be very verbal about defending your rights, or you are considered to voluntarily be waiving them
    There is a fairly recent case US Supreme Court case that I think addresses your question: Berghuis vs. Thompkins. It is somewhat complicated but, specifically pertaining to your privilege against self incrimination, if you are subjected to a custodial interogation, you must be provided your Miranda warnings prior to any questioning. This case, I believe, specifically said that a person needs to do more than sit silent - if that is all you do, the police can just keep questioning you. You need to assert that you are remaining silent and you need to assert your right to have an attorney present during any questioning in order to stop the questioning. You can't forever waive your right to remain silient, you can asset it any point during the questioning. I don't think you need to make a big verbal deal about it - you just say that you are not answering any questions and you want a lawyer.

    The same can apply to consent as well. You might give consent to a search - and the police don't have to tell you that you have the right to decline giving them consent - but you can withdraw that consent at any time but you need to tell the LEO that you want them to stop the search.

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    So, at the very beginning of the traffic stop [speeding, broken tail light, etc..] when the first words out of the officer's mouth is

    Do you know why I pulled you over?
    A simple and polite statement like

    Good Day officer. I'm going to remain silent and only answer your questions with my lawyer present.
    Should suffice?
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