Talking to cops

[Melchiah]

The Supreme Court would like to disagree with you.

[SwampdonkeyPLD]

Hmm, an officer asks you to step out of the car b/c he smells marijuana and you lock the door on your way out.

The smell of marijuana alone is enough to search the car I'm pretty sure, if that isn't PC, locking the door on your way out would surely give the officer PC.

I'm curious what case you're referencing.

[Melchiah]

Carroll v. United States

I secure my vehicle by locking the doors and rolling up all the windows EVERY time I exit the vehicle, just like most of the rest of America. The simple act of securing one's own legal possessions is not a reasonable indicator of illegal activity. The car is a legal possession, thus the driver is well within his rights to secure his own vehicle when asked to leave it while cooperating with an officer of the law. Furthermore, searches have been ruled legal simply because the driver DIDN'T lock his doors or roll his windows up; arguing that the driver gave "implied consent" for the cop to just start going through shit.

[SwampdonkeyPLD]

Carroll v. United States

I secure my vehicle by locking the doors and rolling up all the windows EVERY time I exit the vehicle, just like most of the rest of America. The simple act of securing one's own legal possessions is not a reasonable indicator of illegal activity. The car is a legal possession, thus the driver is well within his rights to secure his own vehicle when asked to leave it while cooperating with an officer of the law. Furthermore, searches have been ruled legal simply because the driver DIDN'T lock his doors or roll his windows up; arguing that the driver gave "implied consent" for the cop to just start going through shit.

That reasoning makes sense, but it's nowhere in the case you cite.

You're also failing to make a factual distinction. Your reasoning seems to apply to a situation where the officers asks someone to simply get out of the car. Here, the officer told him to get out so he could make a search. I would think that's a huge distinction.

[Melchiah]

The case was cited because it establishes a requirement for probable cause specifically related to automobile searches. An officer can claim he smells pot and there is absolutely no way for a defendant to prove otherwise. Because of this, it usually takes more than just the cop saying he smells pot to get a warrant for a legal search. Typically, they will attempt to look around in the vehicle for paraphernalia or contraband that they can use as evidence to support their request for a warrant. Probable cause requires that a reasonable lay person would suspect criminal activity. If I was not a cop(I'm not), and I saw a guy get out of his car to talk to me because I asked him nicely to and immediately roll his windows up and lock his doors, I'd not think twice about it, because it in and of itself is not a suspicious act in the least. It only becomes suspicious when I'm a cop, I've accused the guy of smelling like pot, and I'm asking him to get out of his car so I can search it. The reasonable layperson would not find the act of locking the doors and securing the vehicle when exiting.

Therefore, it is in one's best interest when pulled over to exit the vehicle with the appropriate information in hand and secure and lock his vehicle, if one does not wish for his vehicle to be searched for whatever reason.

EDIT: If the cop told him to get out so he could make a search, and he complied, without a warrant, he's an idiot because he's given consent to the search. You can't have evidence thrown out on the Exclusionary rule if you consented to the search. That's universally stupid.

[SwampdonkeyPLD]

The case was cited because it establishes a requirement for probable cause specifically related to automobile searches. An officer can claim he smells pot and there is absolutely no way for a defendant to prove otherwise. Because of this, it usually takes more than just the cop saying he smells pot to get a warrant for a legal search. Typically, they will attempt to look around in the vehicle for paraphernalia or contraband that they can use as evidence to support their request for a warrant. Probable cause requires that a reasonable lay person would suspect criminal activity. If I was not a cop(I'm not), and I saw a guy get out of his car to talk to me because I asked him nicely to and immediately roll his windows up and lock his doors, I'd not think twice about it, because it in and of itself is not a suspicious act in the least. It only becomes suspicious when I'm a cop, I've accused the guy of smelling like pot, and I'm asking him to get out of his car so I can search it. The reasonable layperson would not find the act of locking the doors and securing the vehicle when exiting.

Therefore, it is in one's best interest when pulled over to exit the vehicle with the appropriate information in hand and secure and lock his vehicle, if one does not wish for his vehicle to be searched for whatever reason.

EDIT: If the cop told him to get out so he could make a search, and he complied, without a warrant, he's an idiot because he's given consent to the search. You can't have evidence thrown out on the Exclusionary rule if you consented to the search. That's universally stupid.

1st Sentence: Wrong. I don't think there is such a case. The 4th amendment establishes that.

2nd & 3rd Sentence: 100% wrong. What a D can prove has nothing to do with it.

4th Sentence: They don't need a warrant to search your car.

Everything after: Again, factual distinction. Prior to D doing that, the cop smells pot. That's the difference.

Your Edit: Again, a cop doesn't need a warrant to search your car. Read the 4th amendment carefully. It says, "no warrant shall issue, but upon PC." It does not say an officer needs a warrant to arrest you or commence a search.

[Melchiah]

I've got my facts out of order; the Carroll decision only stated that probable cause was required for a warrantless search. My mistake.

Probable cause is what an officer must reach to obtain a legal search warrant. It can be inferred from the Carroll decision that when dealing with the automobile exception, an officer reaching probable cause is to be treated as though he convinced the magistrate he had probable cause.

Probable cause is anything that would give a reasonable and cautious person cause to suspect that a crime had happened. Securing your vehicle is a perfectly legal and responsible act. Such an act cannot give a reasonable and cautious person any reason to suspect that an illegal act was occurring. As that relates, when his lawyer filed a motion to suppress, the judge is going to ask the prosecutor why the cop searched the guy without his consent, and the prosecutor is going to say "Um, Officer Doughboy said he smelled pot, and that the kid locked the car up when he made him get out." Probably going to get thrown out.

Look, the thing here is not how to avoid the search, it's about getting evidence barred under the Exclusionary rule. If a cop has a hard-on to search you, he's going to do it, legal or not. If you EVER at any point during the episode consent to any search he asks for or demands, then you've sunk your chances of the judge throwing it out. This is why the "Officer, I don't consent to any searches." If you don't do that, you have no chance for 4th Amendment protection.

[SwampdonkeyPLD]

As that relates, when his lawyer filed a motion to suppress, the judge is going to ask the prosecutor why the cop searched the guy without his consent, and the prosecutor is going to say "Um, Officer Doughboy said he smelled pot, and that the kid locked the car up when he made him get out." Probably going to get thrown out.

We may have to agree to disagree here.

The smell of alcohol alone can give officer's PC to arrest, I don't know why that would be any different for a pot search. Additionally, if I'm the prosecutor, and I have to make some legal argument, I don't think I'd be way off base to argue the officer got PC through the plain view exception. Plain view can come from any vantage point, smell, touch, sight, and sound. If I bothered to look I'm sure I could find a case that says something along those lines.

[*Shinzon*]

We may have to agree to disagree here.

The smell of alcohol alone can give officer's PC to arrest, I don't know why that would be any different for a pot search. Additionally, if I'm the prosecutor, and I have to make some legal argument, I don't think I'd be way off base to argue the officer got PC through the plain view exception. Plain view can come from any vantage point, smell, touch, sight, and sound. If I bothered to look I'm sure I could find a case that says something along those lines.

Just to clear your example up a bit, it's reasonable suspicion and not probable cause. If you're stopped by an officer and he smells alcohol, he'll first have to do the field sobriety test and then the breathalyzer. At which point if you refuse and have already failed the field test then gives him probable cause for the arrest. It's just a small technicality but there is a distinction to be made.

[SwampdonkeyPLD]

Just to clear your example up a bit, it's reasonable suspicion and not probable cause. If you're stopped by an officer and he smells alcohol, he'll first have to do the field sobriety test and then the breathalyzer. At which point if you refuse and have already failed the field test then gives him probable cause for the arrest. It's just a small technicality but there is a distinction to be made.

Not quite. RS only applies to stops. PC is the only standard for search and seizure, i.e. arrest. If you're saying the smell gives the officer R suspicion to detain you further, I could agree with that, but he'll also likely have PC. It's possible to have PC and RS, but RS alone is not PC. Also, the officer is not required to do a field sobriety test.

[*Shinzon*]

Not quite. RS only applies to stops. PC is the only standard for search and seizure, i.e. arrest. If you're saying the smell gives the officer R suspicion to detain you further, I could agree with that, but he'll also likely have PC. It's possible to have PC and RS, but RS alone is not PC. Also, the officer is not required to do a field sobriety test.

I thought you were discussing a stop, my bad. I was also trying to say that reasonable suspicion can develop into probable cause leading to the arrest, just can't think of the case name right now. And while not required to do so most officers will conduct a field test and breathalyzer just to cover the basis. They must conduct the breathalyzer though I think it just came out weird because of the way I typed it, so again my bad.

[Ragnus]

The plain view doctrine allows an officer to seize--without a warrant--evidence and contraband found in plain view during a lawful observation. This doctrine is also regularly used by TSA Federal Government Officers while screening persons and property at U.S. airports.

For the plain view doctrine to apply for discoveries, the three-prong Horton test requires:

the officer to be lawfully present at the place where the evidence can be plainly viewed,
the officer to have a lawful right of access to the object, and
the incriminating character of the object to be “immediately apparent.”
In order for the officer to seize the item, the officer must have probable cause to believe the item is evidence of a crime or is contraband. The police may not move objects to get a better view. In Arizona v. Hicks, 480 U.S. 321 (1987), the officer was found to have acted unlawfully. While investigating a shooting, the officer moved, without probable cause, stereo equipment to record the serial numbers. The plain view doctrine has also been expanded to include the sub doctrines of plain feel, plain smell, and plain hearing.[1]

In Horton v. California 496 U.S. 128 (1990), the court eliminated the requirement that the discovery of evidence in plain view be inadvertent. Previously, "inadvertent discovery" was required leading to difficulties in defining "inadvertent discovery."

view
–noun
1. an instance of seeing or beholding; visual inspection.
2. sight; vision.
3. range of sight or vision: Several running deer came into the view of the hunters.
4. a sight or prospect of a landscape, the sea, etc.: His apartment affords a view of the park.
5. a picture or photograph of something: The postcard bears a view of Vesuvius.
6. a particular manner of looking at something: From a practical view, the situation presents several problems.
7. contemplation or consideration of a matter with reference to action: a project in view.
8. aim, intention, or purpose.
9. prospect; expectation: the view for the future.
10. a sight afforded of something from a position stated or qualified: a bird's-eye view.
11. a general account or description of a subject.
12. a conception of a thing; opinion; theory: His view was not supported by the facts.
13. a survey; inspection: a view of Restoration comedy

Pretty sure it doesn't apply to senses other than vision.

[Acturus]

Pretty sure it doesn't apply to senses other than vision.

Depends on how the legal precedent has been upheld. View may mean sight in the dictionary, but legal actions determine the practice.

[Ragnus]

Depends on how the legal precedent has been upheld. View may mean sight in the dictionary, but legal actions determine the practice.

Touche.

[SwampdonkeyPLD]

I worded the last two sentences in that post weird. I'm not sure the next to last sentence makes sense. Were getting into semantics but here's a random SCOTUS case where they somewhat touched on the sense of touch in regards to plain view. Minnesota v. Dickerson

[Nephlite]

I'm pretty sure that has to do with an extension of plain view in to the "plain feel" doctrine. Has nothing to do with searching a vehicle. I would like to point out that police who search a vehicle aren't really searching it at all. They're really just looking in all the plain view area's to see if contraband or weapons exist in those areas. These area's only apply to the places that are within the subjects constructive possession at the time of the incident. That's why the glovebox and trunk aren't able to be searched by the officer unless he had reasonable suspicion that the subject had access to a weapon in the glovebox (but not the trunk because by the laws of the universe, it's not reasonable to think a subject had access to a weapon in the trunk when he was sitting in the drivers seat).

Locking your car and rolling up the windows will still allow the officer to look inside your car (through the windows) and if he spots something, he can then "search" because it'll then be incident to lawful arrest. Refusing the consent to search is the key here, especially if you're not under arrest. By consenting to a search, you're opening yourself up to get arrested for your crimes. By refusing, technically the officer has nothing on you and you should be free to leave (unless you do some bonehead thing and stuff the drugs in your pockets). I can't see anyone at least the cops I know, allowing a subject to stop and roll up their windows and lock their car because it's an officer safety issue. Usually when i'm pulling someone out the car, I don't even give them a second to think about doing something like that. From there just a refusal to consent to search and it's all done and over. Usually you'll go about your business after that.

[archibaldcrane]

Um...

The plain view doctrine has also been expanded to include the sub doctrines of plain feel, plain smell, and plain hearing.

From Ragnus's post.

[jmc]

Since we are on the topic of searches.......

California court of appeals has ruled that a cars EDR cannot be mined without a warrant, otherwise it would be a violation of someones 4th amendment rights.

*A EDR is the computer in all new cars (Post 2000 I think) that record information like speed and brake reaction time, to be used for information of a accident