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  #1  
Old 03-06-2007, 11:02 PM
diggleblop diggleblop is offline
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Can cops open your mail while searching you?

If I got pulled over and asked to step out of the vehicle for whatever reason and the police officer wanted to search me and I consented. The thing is, I had some unopened letters addressed to me with stamps on them in my hands, can he search the envelopes as well as myself? Or is that against Federal Law? Does he have to ask for permission to open your mail as well?
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  #2  
Old 03-06-2007, 11:05 PM
TNWPsycho7490 TNWPsycho7490 is offline
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I suppose if you consented to it it would be ok, but he would need to have a warrant to search anything if you didn't consent.
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  #3  
Old 03-06-2007, 11:08 PM
Zabali_Clawbane Zabali_Clawbane is offline
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AFAIK, not even the spouse of someone the mail is addressed to can open it legallly, unless they have power of attorney. I think they might be able to with a warrent specifying what the envelope would look like, but otherwise I don't think they can legally open postmarked mail not addressed to them. (Not just stamped, if it's been delivered to you via the United States Postal Service, it would have canceled stamps/a postmark.)

Last edited by Zabali_Clawbane; 03-06-2007 at 11:09 PM.. Reason: typo
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  #4  
Old 03-06-2007, 11:27 PM
Mr. Slant Mr.  Slant is offline
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Quote:
Originally Posted by diggleblop
If I got pulled over and asked to step out of the vehicle for whatever reason and the police officer wanted to search me and I consented. The thing is, I had some unopened letters addressed to me with stamps on them in my hands, can he search the envelopes as well as myself? Or is that against Federal Law? Does he have to ask for permission to open your mail as well?
If you consent to the search, you're hosed.
What I'm not sure about is if they were addressed to your roommate... in that case I don't know if you have sufficient legal privileges over the mail to consent to the search.
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  #5  
Old 03-06-2007, 11:30 PM
Mr. Slant Mr.  Slant is offline
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Originally Posted by TNWPsycho7490
I suppose if you consented to it it would be ok, but he would need to have a warrant to search anything if you didn't consent.
Uh, seriously not true.
I'll demand a cite for that.
The law for searching vehicles and persons differs from the law for searching residences.
Your response would be broadly correct if the cops had knocked on the door to the OP's residence. Your response isn't even in the ballpark of being correct in regards to a motor vehicle search.
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  #6  
Old 03-06-2007, 11:41 PM
Zabali_Clawbane Zabali_Clawbane is offline
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I was thinking that since the envelopes were sealed, and had a postmark, and not addressed to the investigating officers, that they had no legal right to open the envelopes, in the United States at least. The laws regarding who can open mail are very specific. I'm pretty sure that in cases of child porn or other illicit things in the mail they must have a very specific search warrent describing what the missive in question looks like. I don't think they have room to be very vague either.
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  #7  
Old 03-06-2007, 11:53 PM
Campion Campion is offline
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Mr. Slant is correct that constitutional jurisprudence differentiates between vehicle and non-vehicle searches. However, one can consent to any search one wants to.
Quote:
Originally Posted by diggleblop
If I got pulled over and asked to step out of the vehicle for whatever reason and the police officer wanted to search me and I consented.
So you've consented to the search. The cop finds the letters, says, "can I open these?" and you consent, then you have no basis for complaint.

I suspect your question is whether your blanket consent to search goes so far as to include him opening letters and reading them. No clue, and my cursory research (really, really cursory) doesn't find a case on point. I'd suggest that the envelopes are like containers, and are too small to contain weapons. Therefore, they couldn't be searched with reasonable suspicion; you'd instead need a warrant. Unless, of course, consent goes so far as to include them. Tautological, I know, but there you are.

I'm not inclined to analogize further tonight; I'll leave that to some scrappy law student who wants to slog through the jurisprudence.

Oh, and TNWPsycho7490, this is a great thread we've done before about vehicle searches. I think it lays out the vehicle issues, and also talks a bit about the difference between probable cause (which is what you need to get a warrant) and reasonable suspicion, a lesser standard that still permits some searches. Pay particular attention to pravnik, Random, and Bricker. And welcome to the Dope.
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  #8  
Old 03-06-2007, 11:59 PM
Zabali_Clawbane Zabali_Clawbane is offline
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Quote:
Originally Posted by Mr. Slant
Your response would be broadly correct if the cops had knocked on the door to the OP's residence. Your response isn't even in the ballpark of being correct in regards to a motor vehicle search.

I don't think municipal police officers can open sealed mail in a casual residence search. Even if consent for the search is given. Only if the warrent specifies pretty exactly what the letter/evidence they are searching for looks like can they do so. *Maybe* Federal agents can open sealed mail in their investigations, I am not so sure of that. Otherwise it's a federal offense.

ETA: I know we have some members who are spouses of mail carriers, and I think also some who are mail carriers themselves. They could probably pull up the pertinent statutes on this, and interpret them. I don't think I'm far off on this though.

Last edited by Zabali_Clawbane; 03-07-2007 at 12:02 AM.. Reason: spelling too *sigh*
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  #9  
Old 03-07-2007, 11:26 AM
Santo Rugger Santo Rugger is offline
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I read the entire thread Campion linked to, and if this gets things too off topic, I'll start a new thread.

Mr. Slant, I was under the impression that your car is considered a legal extension of your home. Would this be a question of state law?
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  #10  
Old 03-07-2007, 11:46 AM
Loach Loach is online now
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Quote:
Originally Posted by Pygmy Rugger
I read the entire thread Campion linked to, and if this gets things too off topic, I'll start a new thread.

Mr. Slant, I was under the impression that your car is considered a legal extension of your home. Would this be a question of state law?

Yes it is. I mean it is a question of state law. It is not an extension of your home. For instance if there is a search warrant for a home it doesn't mean you can search the car too, even if it is parked there, unless it is spelled out in the warrant. State law and state court precedents change what can be done during a search. I know here in New Jersey we have very strict limits on searches. Valid warrantless searches in other states give you the trunk. Here you need a search warrant for the trunk even in cases where you can search the passenger compartment without a warrant. In most states a cop can ask for a consent search from anyone, here it first has to rise to the level of articulable suspicion before a consent search can even be asked for.

As for the OP, consent trumps everything. About the only defense against anything found in a consent search is that the consent was coerced. The in-car camera usually takes care of that argument. Without consent I don't see anyway it would be valid to open mail unless it is specified in a search warrant (even with consent I don't see a reason why I personally would feel the need to go into someone's mail during a vehicle search). Warrants will have the reason for the search spelled out. If it is for drugs, guns or hand grenades the officer would have a hard time explaining why he was looking in an envelope for a RPG launcher. If it was in a fraud investigation and they are looking for paperwork it would probably be covered in the warrant.
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  #11  
Old 03-07-2007, 11:54 AM
Loach Loach is online now
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Quote:
Originally Posted by Zabali_Clawbane
I don't think municipal police officers can open sealed mail in a casual residence search. Even if consent for the search is given. Only if the warrent specifies pretty exactly what the letter/evidence they are searching for looks like can they do so. *Maybe* Federal agents can open sealed mail in their investigations, I am not so sure of that. Otherwise it's a federal offense.

ETA: I know we have some members who are spouses of mail carriers, and I think also some who are mail carriers themselves. They could probably pull up the pertinent statutes on this, and interpret them. I don't think I'm far off on this though.
Look at your cite. It talks about mail that is being posted. Either in an authorized mailbox or at some other point in the process. Mail sitting in your mailbox falls under the federal law. Mail sitting on your kitchen table is just your property. I am not an expert in this particular area and it has not come up in real life for me yet so someone may be able to prove me wrong with some precedents that I haven't heard of.
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  #12  
Old 03-07-2007, 12:47 PM
mlees mlees is offline
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If the police officer took the envelope out of my hand, and, without opening the envelope, used his sence of touch to see if their was any hard objects in the envelope, is this technically a "search"?

(He gives my envelope a "pat down".)
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  #13  
Old 03-07-2007, 12:53 PM
Loach Loach is online now
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Why does he take it out of your hand? Are you being arrested? Is it a consent search? Are you being mugged?
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  #14  
Old 03-07-2007, 01:15 PM
Bricker Bricker is online now
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There are a number of unfounded claims made in the posts above.

Zabali_Clawbane: please think this through. I'm visiting your house, and, looking at the unopned mail on your kitchen table, say, "Hey - I see you got a letter from Cecil Adams!"

You say: "I wonder what that's about. Go ahead and open it for me, would you?"

Do you believe I have committed a federal crime if I do?

Of course not.

Your consent to search similarly might grant the police the unfettered right to open your mail -- as long as the scope of your consent includes your mail.

If the police arrive at your door and tell you that they are looking for some stolen stereo equipment, and would you mind if they looked around your house, your consent probably does not give them the right to open your mail -- because no one would reasonably believe that the missing stereo equipment might be found in a #10 envelope. But if they are searching for a forged check, they might well have the ability, based on your consent, to open an envelope.
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  #15  
Old 03-07-2007, 02:08 PM
Quartz Quartz is offline
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Can I muddy the waters? What if the envelope is a window envelope? Can the cop say, "I could not help but notice..." and use that as a pretext?
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  #16  
Old 03-07-2007, 02:35 PM
mlees mlees is offline
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Quote:
Originally Posted by Loach
Why does he take it out of your hand? Are you being arrested? Is it a consent search? Are you being mugged?
Sorry. I left off a lot of (assumed) details out of my question.

(I think Bricker has answered my question, without directly addressing me, though.)

I get pulled over for speeding. The police officer approaches, and after a bit, claims he smells alcohol. He asks for consent to search. I grant it.

I step out of the vehicle, holding a sealed, post marked envelope.

According to Bricker's answer, I presume that the police officer would not be allowed to search the envelope, since I can't hide much booze in the envelope that my power bill comes in.

But if he just takes it anyway, and "pats it down" (say, looking for crack cocaine, or something), and returns it unopened, was that a legal search? (If he opened it, I would guess no, it wasn't.)

It seems to me that, from watching the various thrilling car chases on TV, that the way that cops use your consent to search for anything at all seems to indicate that they have wide latitude.

(Cop pulls someone over for speeding, the suspect is driving on expired tags, consents to search, and the cops prowl through the vehicle looking for anything at all... and on TV usually find something and get into a scuffle or car chase.)
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  #17  
Old 03-07-2007, 03:53 PM
Bricker Bricker is online now
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Quote:
Originally Posted by Quartz
Can I muddy the waters? What if the envelope is a window envelope? Can the cop say, "I could not help but notice..." and use that as a pretext?
There's a principle called the "Plain View Doctrine," and it covers what you're asking here. Generally, if the officer can see, in plain view from where he is lawfully standing, something that gives rise to probable cause, then he may lawfully act on it. So if whatever he saw through the envelope window was sufficient to give him probable cause, then it's admissible as evidence and is fruit of a lawful search.

Quote:
Originally Posted by mlees
I get pulled over for speeding. The police officer approaches, and after a bit, claims he smells alcohol. He asks for consent to search. I grant it.
OK - at this point, whether he smelled alcohol or not is irrelevant. You've given consent to search. Unless you've limited the scope of your consent somehow... e.g., "Officer, there's no alcohol in this car at all. You're welcome to look for any alcoholic beverages, but that's all," then he's generally entitled to look anywhere for anything. (Individual state laws may limit this, but as a matter of federal constitutional protection, consent eliminates the need for a warrant, period).

Quote:
I step out of the vehicle, holding a sealed, post marked envelope.

According to Bricker's answer, I presume that the police officer would not be allowed to search the envelope, since I can't hide much booze in the envelope that my power bill comes in.
Unless, as I said, you limit the scope of your consent, I wouldn't count on it. Of course, you may always revoke your consent or limit it. If the officer takes the enevelope from you and starts to open it, you can always say, "NO, don't look in there."

Quote:
But if he just takes it anyway, and "pats it down" (say, looking for crack cocaine, or something), and returns it unopened, was that a legal search? (If he opened it, I would guess no, it wasn't.)
There's a "Plain Touch" exception that's analgous to the "Plain View" business I mentioned above. If he felt something that gave rise to probable cause, it would likely be admissible.

Quote:
It seems to me that, from watching the various thrilling car chases on TV, that the way that cops use your consent to search for anything at all seems to indicate that they have wide latitude.

(Cop pulls someone over for speeding, the suspect is driving on expired tags, consents to search, and the cops prowl through the vehicle looking for anything at all... and on TV usually find something and get into a scuffle or car chase.)
Sure -- because cops are trained to use the limits of the law to their advantage:

"You don't have anything in this car I should know about, do you? Any guns, drugs, needles, anything like that?"

"No."

"Mind if I take a look?"
Isn't that pleasant and friendly? "Mind if I take a look?" Much more agreeable than, "Do you consent to giving up your constitutional right to freedom from search and seizure, understanding that anything I find can be used as evidence, and that you are under absolutely no compulsion to agree?"

Many people say "Sure, go ahead," in response to the Mind if I take a look? because they feel, understandably, that it will look "suspicious" if they refuse. But of course that's not relevant. It probably WILL look suspicious to the cop, but there's not a damn thing he can do about it if he doesn't have probable cause to search... and if he DOES, he'll search anyway, no matter what you say.
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  #18  
Old 03-07-2007, 04:20 PM
ivylass ivylass is offline
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If you refuse a search, can he legally hold you there while he obtains a search warrant?
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  #19  
Old 03-07-2007, 04:51 PM
Max Torque Max Torque is offline
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Quote:
Originally Posted by ivylass
If you refuse a search, can he legally hold you there while he obtains a search warrant?
Answers here will vary by jurisdiction. In my jurisdiction (Texas), an officer cannot prevent you from leaving unless there are specific articulable facts which warrant continuing the detention beyond the original purpose of the stop. So, if the cop smells marijuana, that's reason enough to hold you until a drug dog can get there. But, if there's nothing like that, no evasive answers, that sort of thing, then the officer can't hold you beyond the completion of the original purpose of the traffic stop. Once he's pulled you over, determined that your license is valid and that you don't have a warrant, and issued a citation if he's going to, the stop is over, and he cannot keep you there any longer.

In Texas, a detention of under three minutes was found unreasonable when the officer couldn't point to any specific facts other than the nervousness of the driver. However, in another case where there were specific facts that warranted a continued detention, a wait of 45 minutes was held reasonable. Courts have stated that detentions of an hour or more are not unreasonable if the facts are there.
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Old 03-07-2007, 05:10 PM
Bricker Bricker is online now
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Quote:
Originally Posted by ivylass
If you refuse a search, can he legally hold you there while he obtains a search warrant?
MaxTorque is right on the money. There is no bright-line test ("Holding you longer than X minutes is unreasonable...") but as a general proposition they cannot delay you longer than it takes to complete the purpose of the original stop.

I would point out, too, that if he can get a search warrant, he can likely search you anyway -- that is, the search warrant must be based on probable cause. So in order to obtain a search warrant, he must lay out his probable cause to a neutral magistrate, and if he has that probable cause, he can likely search your car. (This applies to cars, but not to houses).

The benefit of a delay is for the officer to develop additional information which will then lead to probable cause -- for example, summoning the drug dog that Max mentions. A reasonable suspicion may justify a detention but not a search; the drug dog may then alert on your car and provide enough for probable cause to search.
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  #21  
Old 03-07-2007, 05:27 PM
El Zagna El Zagna is offline
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Quote:
Originally Posted by Bricker
Of course, you may always revoke your consent or limit it. If the officer takes the enevelope from you and starts to open it, you can always say, "NO, don't look in there."
Ah, I've wondered about this for some time.

Let's say you're stopped by a cop who says that a TV was just reported stolen nearby, and would like to search your trunk. You know that you don't have a TV in your trunk, but you do have a small vile of - I dunno - plutonium, so you say, "Sure". He then opens the trunk and there is obviously no TV there but then he starts poking around the boxes , bags and clutter that is there. So it sounds like at that point you could say, "Officer, I withdraw my consent", and he'd have to stop the search. Is that right?
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  #22  
Old 03-07-2007, 08:51 PM
iano iano is offline
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Is it safe to say that refusal to a search is not probable cause for a search, as in "he obviously had something to hide"? 'Cause, maybe I have a low opinion of police, but it seems someone would try that...
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  #23  
Old 03-07-2007, 09:26 PM
Telemark Telemark is offline
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Quote:
Originally Posted by iano
Is it safe to say that refusal to a search is not probable cause for a search, as in "he obviously had something to hide"? 'Cause, maybe I have a low opinion of police, but it seems someone would try that...
You are correct, asserting your rights is not a basis for probable cause.
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  #24  
Old 03-07-2007, 10:22 PM
Mr. Slant Mr.  Slant is offline
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Quote:
Originally Posted by El Zagna
Ah, I've wondered about this for some time.

Let's say you're stopped by a cop who says that a TV was just reported stolen nearby, and would like to search your trunk. You know that you don't have a TV in your trunk, but you do have a small vile of - I dunno - plutonium, so you say, "Sure". He then opens the trunk and there is obviously no TV there but then he starts poking around the boxes , bags and clutter that is there. So it sounds like at that point you could say, "Officer, I withdraw my consent", and he'd have to stop the search. Is that right?
Doesn't work like that.
You give your consent to the search, you've consented to it.
Now, I suppose whether or not you're being detained is another question... "You've had 3 hours to search it, I'll be late for work if you keep looking.." might raise some interesting legal issues.
I suppose if you're not being detained, you could consent to the search and then leave in another vehicle, but that would place the police in an amusing situation.
"I'll consent to the search, but you have to wait 45 minutes first and call me a cab..." probably won't fly either.
In any case, every vehicle or dwelling I've ever owned was previously owned, and I'm not about to consent to any searches of anything.
You never know if that shiny 3-year-old Civic you just bought was owned by a dope fiend...
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  #25  
Old 03-08-2007, 01:53 AM
Roland Orzabal Roland Orzabal is offline
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Quote:
Originally Posted by Mr. Slant
In any case, every vehicle or dwelling I've ever owned was previously owned, and I'm not about to consent to any searches of anything.
You never know if that shiny 3-year-old Civic you just bought was owned by a dope fiend...
Boy, you ain't kidding. My first car was an '87 Chevy Celebrity. As it was made three years after I was born, one can imagine it'd had a few prior owners before I got to it. One day, while giving it a thorough clean-out after a road trip -- keep in mind I'd had the car for about a year at this point -- I reached down behind the back seat and felt a plastic baggie filled with what seemed to be fishtank gravel. I pulled it up...

...and found I'd discovered a VERY sizeable quantity of crack cocaine. Easily enough to land me with Possession With Intent to Distribute if a police officer had found it. I called the police and told them what happened, and they were happy to come take the stuff off my hands. Just out of curiosity, I asked the officer what might have happened if, instead of me finding it and reporting it, he had found it while searching my car at a traffic stop. He said, "Well, I'll be honest with you...don't think I'd buy that you had no idea this was there. At the very least we'd be taking a trip downtown, and from there it'd be up to the courts." When I realized how easily I could've been sent to prison if I'd gotten so much as a speeding ticket in the last year, it made my heart skip.

Remember your rights, folks...and always clean out used cars.
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  #26  
Old 03-08-2007, 12:23 PM
ZenBeam ZenBeam is offline
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Quote:
Originally Posted by Bricker
There are a number of unfounded claims made in the posts above.

Zabali_Clawbane: please think this through. I'm visiting your house, and, looking at the unopned mail on your kitchen table, say, "Hey - I see you got a letter from Cecil Adams!"

You say: "I wonder what that's about. Go ahead and open it for me, would you?"

Do you believe I have committed a federal crime if I do?

Of course not.
Doesn't it go further than that? The unopened mail on her table (as well as the mail diggleblop was holding in the OP) has been delivered, so even without consent, wouldn't the U.S. Code that Zabali_Clawbane linked to no longer apply? I'm not suggesting it would be legal to open someone else's delivered mail without consent, just that that particular law isn't relevent once the mail has been delivered. IANAL
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  #27  
Old 03-08-2007, 10:33 PM
diggleblop diggleblop is offline
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wow, thanks for the info, guys !
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  #28  
Old 03-08-2007, 11:21 PM
Random Random is offline
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Quote:
Originally Posted by Campion
Pay particular attention to pravnik, Random, and Bricker. And welcome to the Dope.

Thanks for the kind words! And I certainly agree about the quality of pravnik and Bricker posts.

But I am taking a break from GQ legal posts these days.


(They did give me fodder for one question in my shameless ripoff of the Bricker Challenge, currently pending in MPSIMS, though.)
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  #29  
Old 03-09-2007, 10:46 AM
Bricker Bricker is online now
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Quote:
Originally Posted by El Zagna
Ah, I've wondered about this for some time.

Let's say you're stopped by a cop who says that a TV was just reported stolen nearby, and would like to search your trunk. You know that you don't have a TV in your trunk, but you do have a small vile of - I dunno - plutonium, so you say, "Sure". He then opens the trunk and there is obviously no TV there but then he starts poking around the boxes , bags and clutter that is there. So it sounds like at that point you could say, "Officer, I withdraw my consent", and he'd have to stop the search. Is that right?
Correct, unless he saw, smelled, or felt something before you withdrew consent that gave him probable cause.
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  #30  
Old 03-09-2007, 11:08 AM
Bricker Bricker is online now
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Quote:
Originally Posted by Mr. Slant
Doesn't work like that.
You give your consent to the search, you've consented to it.
Completely and utterly wrong.

Amazingly so, given the confidence with which the answer is given, eh?

You may withdraw your consent at any time, as long is it is with an "unequivocal act or statement of withdrawal." See US v. Martel-Martines, 988 F.2d 855, 858 (8th Cir. 1993); US v. Alfaro, 935 F.2d 64, 67 (5th Cir. 1991); US v. Layton, 161 F.3d 1168, 1171 (8th Cir. 1998).
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  #31  
Old 03-09-2007, 01:03 PM
Loach Loach is online now
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Quote:
Originally Posted by Bricker
MaxTorque is right on the money. There is no bright-line test ("Holding you longer than X minutes is unreasonable...") but as a general proposition they cannot delay you longer than it takes to complete the purpose of the original stop.

I would point out, too, that if he can get a search warrant, he can likely search you anyway -- that is, the search warrant must be based on probable cause. So in order to obtain a search warrant, he must lay out his probable cause to a neutral magistrate, and if he has that probable cause, he can likely search your car. (This applies to cars, but not to houses).

The benefit of a delay is for the officer to develop additional information which will then lead to probable cause -- for example, summoning the drug dog that Max mentions. A reasonable suspicion may justify a detention but not a search; the drug dog may then alert on your car and provide enough for probable cause to search.

Just to make something even clearer (although Bricker is doing a good job of it), if there is probable cause there is no need for a search warrant. Like Bricker said this applies to cars not houses. If an officer smells marijuana, sees paraphrenalia or sees a pot plant growing in your back seat he has probable cause. The car can be searched without a warrant. There are limits that differ from state to state. For instance if there is probable cause in most states they can open the trunk. Here in New Jersey if you have probable cause to search the passenger compartment you would need a warrant to search the trunk. The state supreme court has also taken away the "mind if I look" consent searches. There has to be an articulable suspicion before consent can even be asked for. The officer doesn't have to say that he has a suspicion, he can still just say "mind if I look" but he better be able to say the reason for it in court or it will be thrown out and the officer might be looking at civil rights charges.

Quote:
Originally Posted by Bricker
Completely and utterly wrong.

Amazingly so, given the confidence with which the answer is given, eh?
Exactly what I was thinking.

Last edited by Loach; 03-09-2007 at 01:04 PM..
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  #32  
Old 03-09-2007, 05:52 PM
Random Random is offline
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Quote:
Originally Posted by Bricker
Completely and utterly wrong.

Amazingly so, given the confidence with which the answer is given, eh? .

Sadly, I am no longer amazed by this kind of thing.

Again, Rick, nice work, and keep up the good fight!
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