Can you tell an officer you don't believe his probable cause?

[Quartz]

Inspired by this post

Originally Posted by Tristan

The several times I have been pulled over (as a passenger) in friends cars, it has always always been "we smelled marijuana from this car".

Can you respond something like "I believe that is an invented pretext officer. I and my friends have been pulled over a number of times on that pretext and no marijuana has ever been found. As such I believe it to be a ploy. Am I free to go?"

Now, if the officer insists, one should accede to the search - the place to argue being in court - but could you then go to court and prosecute the police for something? Is inventing a pretext for pulling over a vehicle actually illegal?

[Really Not All That Bright]

Originally Posted by Quartz

Now, if the officer insists, one should accede to the search - the place to argue being in court - but could you then go to court and prosecute the police for something? Is inventing a pretext for pulling over a vehicle actually illegal?

IANAL.

That said, in this state (FL), you're free to refuse a search, but the officer is free to detain you until the drug-sniffer dog arrives.

For up to two hours.

[Telemark]

Originally Posted by Really Not All That Bright

IANAL.

That said, in this state (FL), you're free to refuse a search, but the officer is free to detain you until the drug-sniffer dog arrives.

For up to two hours.

I'm not sure that applies here. If the officer smells MJ he doesn't need the dog to confirm that. Smelling pot should be (IANAL, so I'm going to assume it is) enough probably cause for some type of search.

In general, it's rarely productive to challenge the cop at the time of the stop. You can do so afterwards in a much less confrontational environment.

[Bearflag70]

Originally Posted by Quartz

Inspired by this post



Can you respond something like "I believe that is an invented pretext officer. I and my friends have been pulled over a number of times on that pretext and no marijuana has ever been found. As such I believe it to be a ploy. Am I free to go?"

Now, if the officer insists, one should accede to the search - the place to argue being in court - but could you then go to court and prosecute the police for something? Is inventing a pretext for pulling over a vehicle actually illegal?

Good luck with that. The cop on the scene will not likely be swayed. Then you go to court, and what happens there?

COP: I smelled pot.

YOU: No you didn't.

COP: Yes, I did.

YOU: Nuh-uh.

COP: Yes-huh.

YOU: Nosiree, Bob.

COP: Yup.

YOU: Duck season!

COP: Wabbit season!

[Acsenray]

If an officer has probable cause, he or she doesn't need your consent. If you dispute his probable cause, you're going to have to tell it to the judge.

[Lemur866]

You don't have to give a reason for why you decline to let the officer search. You just say, "No, I don't consent. Am I free to go?"

Now, if the officer says, "No, you're not free to go." then you're under arrest. But he can't arrest you for no reason, or rather, when you go to court if he didn't have a good reason for arresting you then his case is going to fall apart.

In other words, if the cop has a good reason (as defined by law) to search your vehicle, he can do so without your permission. And if he doesn't have a good reason, then he can't do so without your permission, and you have no obligation to give him permission. Except people--even people with drugs or weapons or dead hookers in the car--very often for some reason give the cops permission to search. You don't need to give a reason for why you refuse to consent to a search. Of course, if the cops search your car without your consent all you should do is make it clear that you don't consent to the search, and then shut up.

[DSYoungEsq]

Originally Posted by Quartz

Inspired by this post



Can you respond something like "I believe that is an invented pretext officer. I and my friends have been pulled over a number of times on that pretext and no marijuana has ever been found. As such I believe it to be a ploy. Am I free to go?"

Now, if the officer insists, one should accede to the search - the place to argue being in court - but could you then go to court and prosecute the police for something? Is inventing a pretext for pulling over a vehicle actually illegal?

Let's be clear what the situation is, since the answer depends upon the situation.

IF the officer asks your permission to search your car, you do not need to grant the officer permission, nor do you have to give any reason for not allowing the search. Politely say, "I'm sorry, sir, but no."

IF the officer is not asking if you will permit a search, but is instead informing you that a search will take place, will-ye, nil-ye, then there is nothing to say at that point. If the search turns out to be unconstitutional, then any evidence obtained during the search most likely will be inadmissible in any criminal case pursued by the state against you or your passengers. This, in most cases, is the extent of your "remedy" for having had your constitutional rights violated by the officer. It might be the case that your jurisdiction would allow a civil suit for violation of your civil rights; you would need to check into that and it's something that varies substantially from state to state.

So, in short answer to your question, you should not argue, or even discuss the issue with the officer in a way similar to that posed by your post. If asked, politely refuse, and see if the officer thinks he has sufficient grounds to search regardless (they will often ask anyway, just to insulate their action with your permission). If told, simply comply quietly.

[filmyak]

Originally Posted by Quartz

Can you respond something like "...I and my friends have been pulled over a number of times on that pretext .."

If that's how you respond, he's got probable cause to call the grammar police, at the very least.

[Gfactor]

Can you respond something like "I believe that is an invented pretext officer. I and my friends have been pulled over a number of times on that pretext and no marijuana has ever been found. As such I believe it to be a ploy. Am I free to go?"

You can respond however you like. The answer will be that you are not free to go until he's done. If a search turns up pot or other contraband or evidence of a crime, you can argue in court about whether it is admissible. Your opinion about whether the cop was sincere will not be relevant.

[Acsenray]

Why? So far as I can tell that quoted portion is grammatically pristine.

[iwakura43]

It's usual to put the reference to yourself after the reference to others, making it "My friends and I..."

[Gfactor]

Originally Posted by Quartz

Now, if the officer insists, one should accede to the search - the place to argue being in court - but could you then go to court and prosecute the police for something? Is inventing a pretext for pulling over a vehicle actually illegal?

Some state constitutions have been read to bar pretext stops: http://caselaw.lp.findlaw.com/script...907ma1&invol=3

The federal courts generally do not, as long as there was an objective reason for the stop:

Whren makes clear, may not be invalidated under the Fourth (and Fourteenth) Amendment on the ground that the officers stopped the car for “pretextual” reasons – which is to say, acted upon a violation of one set of laws (e.g., run-of-the-mill traffic laws) in order subjectively to enforce another set of laws (e.g., drug-trafficking laws). In the words of Whren: “Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.” Id. at 813. See also Arkansas v. Sullivan, 532 U.S. 769, 771–72 (2001) (per curiam) (holding that a custodial arrest for a traffic violation and search incident to arrest do not violate the Fourth Amendment just because the officer had an improper subjective motivation for making the stop).

http://caselaw.lp.findlaw.com/script.../03a0328p.html

Would the officer be prosecuted for stopping you briefly and releasing you? I'm going to say no.

Could you sue the officer? Maybe, but your damages would be very limited.

[Acsenray]

Originally Posted by iwakura43

It's usual to put the reference to yourself after the reference to others, making it "My friends and I..."

But that isn't a rule of grammar. Grammatically, there's nothing wrong with "I and my friends ..."

[Gfactor]

Originally Posted by acsenray

But that isn't a rule of grammar. Grammatically, there's nothing wrong with "I and my friends ..."

See, e.g., http://www.askoxford.com/asktheexper...grammar/meandi

saying 'my friend and I' instead of 'I and my friend' is not better grammar, it's just being polite.

[A.R. Cane]

Not a traffic stop, but several years ago two uniformed officers came to my home about a car that my wife (at the time) had given to a girlfriend, w/o notifying the state of the change in ownership. I invited them in and offered them coffee. I told them all I knew about the car. On of the officers then went into this spiel about have been through drug task force
and then informed me that he believed he smelled marijuana and ask me if I was growing, or using it. I was furious and told them that the invitation to enter my home had expired, asking them to leave. They did so, w/ a few parting words. So I'm not sure an officer smelling pot is sufficient to establish probable cause for a search w/o some substantiating evidence. When my wife talked to them later, their first question was about smelling pot in my house. These guys seemed pretty convinced, so I'm pretty sure they would have searched if they believed they could have.

[filmyak]

Originally Posted by A.R. Cane

On of the officers then went into this spiel about have been through drug task force
and then informed me that he believed he smelled marijuana and ask me if I was growing, or using it.

Gotta ask... WERE you growing or using it? Just curious if they were making it up entirely or if you really (hypothetically of course) may have had some around.


I am my fellow readers would love to know. =)
(yeesh, that just sounds bad. At the very least the POLITENESS police will be called.)

[Gfactor]

Some good discussions: http://policechiefmagazine.org/magaz...ssue_id=102005

http://norml.org/pdf_files/brief_ban...aodorstudy.pdf (reprint of a study published in Law & Human Behavior)

http://caselaw.lp.findlaw.com/script...098maj&invol=3 (smell can be probable cause)

http://caselaw.lp.findlaw.com/script...&invol=wright2

[Strain of Thought]

Wait, wait, I'm missing something- what makes a search constitutional?

It almost sounds like you guys are saying that the best way to make a search constitutional is to find something during the search. It also sounds like there's no penalty to an officer for violating an innocent person's rights, but if the searched person is guilty of something then they can give the officer trouble.

[A.R. Cane]

Originally Posted by filmyak

Gotta ask... WERE you growing or using it? Just curious if they were making it up entirely or if you really (hypothetically of course) may have had some around.


I am my fellow readers would love to know. =)
(yeesh, that just sounds bad. At the very least the POLITENESS police will be called.)

No, I had just made coffee and I suspect that's what he smelled. I can think of no reason why he might have thought I was a druggie, other than an overactive imagination. It was extremely offensive. I have no respect for our local police, due to that and several other incidents.

[Frylock]

Originally Posted by DSYoungEsq

will-ye, nil-ye

You just blew my etymological mind.

-FrL-

[Quartz]

Gfactor, your second cite is particularly enlightening. It's very late here so I'll give it a reread in the morning.

Perhaps I can extend the situation. Suppose you're in your car and you have absolute proof (we'll assume that details are not relevant) that there's no marijuana in or on the car. Clearly the officer is lying to you when he says he smelled marijuana. Is the officer committing an offence by so doing? Attempted extortion? Harrassment? Can you arrest him for that offence?

[danceswithcats]

How many times will this hypothetical issue be brought before the boards before it is considered properly answered? Please. Cease to continue further beating of these bleached equine bones.

[DLuxN8R-13]

Originally Posted by Lemur866

... if the cop has a good reason (as defined by law) to search your vehicle, he can do so without your permission. And if he doesn't have a good reason, then he can't do so without your permission

Heh. It usually shakes out closer to this: the cop will search your car if he wants to --he just doesn't like you, maybe--and make up a reason if needs must. Cops do that kind of thing all the damn time, and get away with it, too. Their idea of a "good reason" is privileged almost by default. It's an ugly little open secret that many, if not most, judges will take a LEO's word over that of a regular citizen almost every time -- and if the non-police party is of a minority ethnic background, or appears noticeably "subcultural", or otherwise manifests down-power social status, it's practically a sucker bet.

[A.R. Cane]

Originally Posted by danceswithcats

How many times will this hypothetical issue be brought before the boards before it is considered properly answered? Please. Cease to continue further beating of these bleached equine bones.

This board is constantly evolving. That certain subjects will come up over and over is a certainty. It may be boring to some of us, but I don't see the harm in discussing some subjects, especially civil rights, over again. If you find it monoonous, then just skip the thread,

[Martin Hyde]

Originally Posted by DLuxN8R-13

Heh. It usually shakes out closer to this: the cop will search your car if he wants to --he just doesn't like you, maybe--and make up a reason if needs must. Cops do that kind of thing all the damn time, and get away with it, too. Their idea of a "good reason" is privileged almost by default. It's an ugly little open secret that many, if not most, judges will take a LEO's word over that of a regular citizen almost every time -- and if the non-police party is of a minority ethnic background, or appears noticeably "subcultural", or otherwise manifests down-power social status, it's practically a sucker bet.

I won't deny that this could be the situation in many areas. I have a very close friend who is a police officer and he says that here (near Richmond, Virginia) he knows of several cases in which fellow officers clearly didn't have their "facts straight" when they were in court. He elaborated that judges around these parts get quite pissed off when they get the impression that a LEO is reaching for straws or trying to stretch the truth out because their actions at the time of the incident weren't quite legally correct.

[Lemur866]

Originally Posted by DLuxN8R-13

Heh. It usually shakes out closer to this: the cop will search your car if he wants to --he just doesn't like you, maybe--and make up a reason if needs must. Cops do that kind of thing all the damn time, and get away with it, too. Their idea of a "good reason" is privileged almost by default. It's an ugly little open secret that many, if not most, judges will take a LEO's word over that of a regular citizen almost every time -- and if the non-police party is of a minority ethnic background, or appears noticeably "subcultural", or otherwise manifests down-power social status, it's practically a sucker bet.

Well, of course if the cop lies or plants evidence, then all bets are off. I mean, if you annoy a cop enough he can drag you into the woods and put a bullet in your brain, right?

So of course a cop can "make up" a reason to search you if he's in the mood. The trouble for the cop comes after the search. Is he going to perjure himself on the stand? Of course some cops perjure themselves in court, and if a cop lies about what happened it can be difficult to rebut his lying ass, especially if you're differently pigmented.

But suppose a cop "smells marijuana" and uses that as a pretext to search you. And he doesn't find any marijuana, but does find some other contraband. Now he has to change his story, because if he testifies that he smelled marijuana but there was no marijuana then he's an obvious liar. He'll have to make up something else. Of course, it's more likely that he'll take a look at the hippies in the car, declare that he "smells marijuana" and then search. If he finds pot, then his made-up probable cause suddenly becomes plausible. And if he doesn't find pot, the most likely scenario is that he lets the damn dirty hippies go....unless he finds a dead hooker in the trunk or whatever.

But if he finds that dead hooker in the trunk, then he's going to have to think fast and make up a new story, and it's possible that he's blown the whole case with his clumsy lies.

[t-bonham@scc.net]

How did that situation in the OP work again?

The cop "pulled you over" because "he smelled" marijuana from your car -- as you passed each other at 55 mi/hr? Yeah, that's real believable.

[Rick]

Originally Posted by Bearflag70

YOU: Duck season!

COP: Wabbit season!

This has me giggling like a school girl.

[Eonwe]

Originally Posted by Lemur866

Of course, it's more likely that he'll take a look at the hippies in the car, declare that he "smells marijuana" and then search. If he finds pot, then his made-up probable cause suddenly becomes plausible. And if he doesn't find pot, the most likely scenario is that he lets the damn dirty hippies go....unless he finds a dead hooker in the trunk or whatever.

But if he finds that dead hooker in the trunk, then he's going to have to think fast and make up a new story, and it's possible that he's blown the whole case with his clumsy lies.

I have had basically good experiences with police, but the first time I was ever pulled over (in high school, going 37 in a 25 late at night), the guy gave me a warning, but after he handed it to me he says, "just so you know, when you rolled down the window, I'm pretty sure I smelled something." Um . . . ok? Maybe he really did, but I left with this nasty feeling that he was playing games with this hippie-looking kid with the long hair and his black female passenger. I don't really know what his point was, but his whole demeanor was confrontational, and that last bit was just over the top.

[brujaja]

I was pulled over, so to speak, and searched one night. I was walking my bike down the sidewalk because I didn't have a headlight, required by law in my state, and I didn't want to be hassled by the cops. That particular street makes a sharp left turn, and as I rounded the turn (on foot, mind you), I crossed the street so that I would be walking on the right. (Several blocks ahead, I planned to turn right.) The cop car, which had been sitting with no headlights, pulled up and pulled me over. They said that it was suspicious that I had crossed the street to avoid them. Jeez, I didn't even see them until they pulled up -- if I had seen them, I sure wouldn't be dumb enough to cross the street. (It's not rocket surgery. )

They asked, could they just go ahead and search me, and I said No, I do not consent, because I don't think that simply crossing the street was sufficient to justify a search. I said that my political convictions were important to me, and I felt I should stand up for what I believe in. (cue national anthem.)

They searched me anyway.

[jjimm]

I tried this once in Dublin. It didn't work.

Cop: Do you know why I pulled you over?

Me: It's pouring with rain, so when the light went amber I didn't stop because I was concerned that I'd skid through the junction. I presume it's that?

Cop: The light you drove through was red.

Me: It was amber.

Cop: It was red.

Me: From where you were sitting, you couldn't have seen what colour the light was.

Cop: OK, I'll give you a ticket for dangerous driving then, for jumping an amber light.

(There was more jolly banter around this, which concluded with the cop saying, with a smile "you're late for work now, aren't you?" - but this was the nub of the conversation.)

[Dead Cat]

Originally Posted by jjimm

I tried this once in Dublin. It didn't work. [snip]

Your mistake here was responding to the officer's first question - it's a very common ploy to get you to admit to something. For example, if you speed past a cop and they don't record your speed, they may well ask "why do you think I stopped you?" when they pull you over. If you say "because I was speeding" in an attempt to appear contrite and/or alert, you've basically handed them a licence to ticket you - you have confessed to the crime. Without that, they have little or no evidence on which to convict you and you're more likely to get off with a warning.

I have been pulled over several times (mostly for speeding) and never got a ticket this way (of course I have also been very lucky). The correct response to "why do you think I stopped you?" is a polite "I'm not sure, perhaps you could tell me?"

On a particularly memorable occasion, I was accused of jumping a red light (although they would also have noticed the speed at which I drove off). The police car was positioned on the opposite site of the road and couldn't possibly have seen whether or not the light was green (it was), they just wanted me to admit to something. After a breath test (clear) I was on my way.

The reason it sticks in the memory is because I was driving barefooted, which made the walk to the police car a bit embarrassing. However, that was fine - they said the last person they stopped was wearing slippers!

[Quartz]

For me the basic issue is one of trust: if the officer has lied on this issue, then on what other issues has he lied?

[Quartz]

Originally Posted by Dead Cat

I have been pulled over several times (mostly for speeding) and never got a ticket this way (of course I have also been very lucky). The correct response to "why do you think I stopped you?" is a polite "I'm not sure, perhaps you could tell me?"

"I'm not sure" will get you done for Driving Without Due Care over here. I'd suggest, "I'm sure you're about to tell me, officer."

[nd_n8]

From personal experience, Probable Cause is completely disgressionary. If the officer "thinks" he smells something funny or something looks funny then that is enough for the courts (Indiana courts anyway). If all is well all an officer has to do is say "I made a mistake" when and if he gets to court and life moves on.

The story:

[Cub Mistress]

Originally Posted by Lemur866

Well, of course if the cop lies or plants evidence, then all bets are off. I mean, if you annoy a cop enough he can drag you into the woods and put a bullet in your brain, right?

So of course a cop can "make up" a reason to search you if he's in the mood. The trouble for the cop comes after the search. Is he going to perjure himself on the stand? Of course some cops perjure themselves in court, and if a cop lies about what happened it can be difficult to rebut his lying ass, especially if you're differently pigmented.

But suppose a cop "smells marijuana" and uses that as a pretext to search you. And he doesn't find any marijuana, but does find some other contraband. Now he has to change his story, because if he testifies that he smelled marijuana but there was no marijuana then he's an obvious liar. He'll have to make up something else. Of course, it's more likely that he'll take a look at the hippies in the car, declare that he "smells marijuana" and then search. If he finds pot, then his made-up probable cause suddenly becomes plausible. And if he doesn't find pot, the most likely scenario is that he lets the damn dirty hippies go....unless he finds a dead hooker in the trunk or whatever.

But if he finds that dead hooker in the trunk, then he's going to have to think fast and make up a new story, and it's possible that he's blown the whole case with his clumsy lies.

I don't think it necessarily follows that if someone says they smell marijuana, but upon a search no marijuana is found, that the person who smelled the marijuana is lying. When I was working at a high school, I found more than one student who smelled of marijuana but no longer had it on their person. The smell of the smoke can hang around long after the pot is smoked. I was not lying about still smelling it.

[nd_n8]

Sorry, brief technical blurb.

The story (continued):
In the early 90s, a young and arrogant N8 was driving his girlfriend's car when the brakes went out (the brakes were bad anyway and I was, in fact, driving to my parents house to fix them). After swerving to miss the sherriff I managed to coast to a stop. The sherriff came at the car with pistol drawn and we did the "Down on your knees" tango for a bit as I explained the situation.
He understood the story and eventually released me and said the car had to be impounded. Meh, whatever. As I stood there he started searching the car (without asking) so i stood there and watched. He asked me to move to the rear of the vehicle and I asked "Why?". He said so he could search the car and I said "Go ahead, I'll just stand here and watch." He continued to ask me to move at which point I said "F*** You, If you're going to search this car I'm going to watch you do it." at which point the handcuffs came out.
The charges were "Failure to cooperate with an officer" and I bonded out that evening. No formal criminal charges were even filed. As a bonus, the day I was arrested happened to be race day in May. Since I was technically arrested in Speedway I was detained inside the track for the duration of that year's Indy 500 with a pretty good view of turn 2 and the back straight. Not the best way to see the race but not as bad as all that either.

[Santo Rugger]

Originally Posted by Quartz

"I'm not sure" will get you done for Driving Without Due Care over here. I'd suggest, "I'm sure you're about to tell me, officer."

How is not knowing how a cop pulled you over driving without due care? And "I'm sure you're about to tell me," sounds like the silent following is, "and write me a ticket for it." I'd rather not be snarky to a cop if I can help it.

[Quartz]

Because you obviously weren't paying attention. That is, you were driving without Due Care.

[Dinsdale]

Originally Posted by A.R. Cane

This board is constantly evolving.

Not only the board, but also the law. And not - IMO - in a desireable direction. I just read yesterday that the Supremes have agreed to hear an appeal out of IIRC Arizona, concerning whether cops have the right to search a parked vehicle, after arresting the vehicle's owner outside of the car. Personally, I cannot imagine any reason why such a search would be warranted, why there would be any threat to the police, and why they couldn't impound the car and attempt to establish probable cause for a warrant. But the clear trend over the past decade or 2 has clearly been to reduce the expectation of privacy - especially in vehicles, and to increase LEOs' ability to stop and search.

A trend I strongly disagree with.

Realize that "probable cause" is only relevant AFTER the search, whan and if it is being challenged in court. At the time, it is sufficient to clearly and politely refuse consent to a search. Realize that you may think your car is clean, but your passenger might have something in his pocket, your kid may have put a roach out in the ashtray when he borrowed the car, there may be something in the luggage in the trunk...

[Cervaise]

Originally Posted by Dead Cat

The correct response to "why do you think I stopped you?" is

"Because you had a fight with your woman?"

[mhendo]

Originally Posted by Dinsdale

I just read yesterday that the Supremes have agreed to hear an appeal out of IIRC Arizona, concerning whether cops have the right to search a parked vehicle, after arresting the vehicle's owner outside of the car. Personally, I cannot imagine any reason why such a search would be warranted, why there would be any threat to the police, and why they couldn't impound the car and attempt to establish probable cause for a warrant.

Here's the story:

New York Times

Los Angeles Times

Interestingly, the LA Times notes that the search revealed a gun and some cocaine, whereas the NY Times mentions only the drugs, not the firearm.

Anyway, i agree that this sort of search should require a warrant, especially given that the guy is already in custody and the police can secure his vehicle. The only difference between a warrant and no warrant, in this case, is that the cops actually have to do some work rather than just opening the car because they feel like it.

[Gfactor]

Originally Posted by Dinsdale

I cannot imagine any reason why such a search would be warranted, why there would be any threat to the police, and why they couldn't impound the car and attempt to establish probable cause for a warrant.

Of course, if they inventory the car as part of the impound process, they don't need a warrant. http://caselaw.lp.findlaw.com/cgi-bi...l=479&page=375

[Dinsdale]

Originally Posted by Gfactor

Of course, if they inventory the car as part of the impound process, they don't need a warrant.

Of course. But why would they necessarily impound a legally parked vehicle? IIRC, in this case the state was making some argument about LEO safety or something.

Arizona Atty. Gen. Terry Goddard appealed to the U.S. Supreme Court last fall. He argued that the state high court's opinion -- if allowed to stand -- sets "an unworkable and dangerous test" that would confuse police, prosecutors and judges.

Officers would be uncertain whether they could search a vehicle when the arrested occupant was outside the vehicle and handcuffed, he said.

Seems to me there'd be no "confusion" if the cops simply adopted a bright line not to search the damned car absent a search, but I fear that is not the way this is going...

[Loach]

Originally Posted by A.R. Cane

Not a traffic stop, but several years ago two uniformed officers came to my home about a car that my wife (at the time) had given to a girlfriend, w/o notifying the state of the change in ownership. I invited them in and offered them coffee. I told them all I knew about the car. On of the officers then went into this spiel about have been through drug task force
and then informed me that he believed he smelled marijuana and ask me if I was growing, or using it. I was furious and told them that the invitation to enter my home had expired, asking them to leave. They did so, w/ a few parting words. So I'm not sure an officer smelling pot is sufficient to establish probable cause for a search w/o some substantiating evidence. When my wife talked to them later, their first question was about smelling pot in my house. These guys seemed pretty convinced, so I'm pretty sure they would have searched if they believed they could have.

Just to clarify something, this situation is different than the OP. The law treats vehicles different. Basically if they were in your house and found probable cause they would have to get a warrant to search. If there is probable cause during a motor vehicle stop then they can search without a warrant. There is more to it than that and it is a bit different from state to state. For instance, in New Jersey even with probable cause you can't go into the trunk without a warrant. In other states you can.

Originally Posted by Lemur866

Now, if the officer says, "No, you're not free to go." then you're under arrest. But he can't arrest you for no reason, or rather, when you go to court if he didn't have a good reason for arresting you then his case is going to fall apart.

Sorry that is wrong. The courts, including SCOTUS has upheld that there is a need for holding people for investigation. There has never been a definitive time limit for when an investigation becomes an arrest. For the courts it has been mostly a "we know it when we see it." Generally under 45 minutes is considered reasonable for an investigation. I'm sure Gfactor will find the cites in about 30 seconds. If you think about it, it makes sense.

[Gfactor]

Originally Posted by Dinsdale

Of course. But why would they necessarily impound a legally parked vehicle? IIRC, in this case the state was making some argument about LEO safety or something.



Seems to me there'd be no "confusion" if the cops simply adopted a bright line not to search the damned car absent a search, but I fear that is not the way this is going...

I agree completely. And they don't need a warrant to search a vehicle. If they had probable cause, they could search the car. I haven't read the article yet, but they're either trying to make it a wingspan search incident to arrest or a reasonable suspicion search under Terry.

[Gfactor]

Originally Posted by Gfactor

And they don't need a warrant to search a vehicle. If they had probable cause, they could search the car. I haven't read the article yet, but they're either trying to make it a wingspan search incident to arrest or a reasonable suspicion search under Terry.

and I'm wrong:

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED LIMITED TO THE
FOLLOWING QUESTION: DOES THE FOURTH AMENDMENT REQUIRE LAW
ENFORCEMENT OFFICERS TO DEMONSTRATE A THREAT TO THEIR SAFETY
OR A NEED TO PRESERVE EVIDENCE RELATED TO THE CRIME OF ARREST
IN ORDER TO JUSTIFY A WARRANTLESS VEHICULAR SEARCH INCIDENT TO
ARREST CONDUCTED AFTER THE VEHICLE'S RECENT OCCUPANTS HAVE
BEEN ARRESTED AND SECURED?

http://www.supremecourtus.gov/qp/07-00542qp.pdf

So actually, Gant it trying to limit Belton to situations where the suspect is arrested while in his vehicle. See, e.g., http://www.supreme.state.az.us/argum...CR060385PR.pdf

The state supreme court opinion: http://www.supreme.state.az.us/opin/...CR060385PR.pdf

The petition for cert: http://www.scotusblog.com/movabletyp...07-542_pet.pdf

The opposition: http://www.scotusblog.com/movabletyp...07-542_bio.pdf

Some amicus briefs are here: http://www.scotusblog.com/wp/uncateg...ence-of-22208/

[Gfactor]

From the AZ Sup. Ct. Opinion:

Because Thornton’s holding was carefully limited to the question presented, the Supreme Court did not address whether, even if an arrestee is a recent occupant, a search of the arrestee’s vehicle is nonetheless unlawful if concerns for officer safety or destruction of evidence – the Chimel justifications – no longer exist at the time of the search. See id. at 622 n.2, 624 n.4.

3 Gant concedes that he was a recent occupant of his car at the time he was arrested, a concession borne out by the facts: Gant was arrested immediately after alighting from his car and within eight to twelve feet of it. See Thornton, 541 U.S. at 622; Dean, 206 Ariz. at 166, ¶ 30, 76 P.3d at 437.

We are aware that most other courts presented with similar factual situations have found Belton and Thornton dispositive of the question whether a search like the one atissue was incident to arrest. E.g., United States v. Mapp, 476 F.3d 1012, 1014-15, 1019 (D.C. Cir.) (upholding search of arrestee’s car conducted after he had been handcuffed and placed in patrol car), cert. denied, 75 U.S.L.W. 3695 (Jun. 25, 2007); United States v. Hrasky, 453 F.3d 1099, 1100, 1103 (8th Cir. 2006) (same), cert. denied, 127 S. Ct. 2098 (2007); United States v. Osife, 398 F.3d 1143, 1144, 1146 (9th Cir. 2005) (same); accord State v. Waller, 918 So. 2d 363, 364, 366-68 (Fla. Dist. Ct. App. 2005) (upholding search of arrestee’s truck conducted after he was handcuffed and “secured at the back of the truck”); Rainey v. Commonwealth, 197 S.W.3d 89, 91, 95 (Ky. 2006) (upholding search of arrestee’s car conducted after he was handcuffed and “so far from his vehicle that it was unlikely he could have accessed it”), cert. denied, 127 S. Ct. 1005 (2007); State v. Scott, 200 S.W.3d 41, 43-44 (Mo. Ct. App. 2006) (upholding search of arrestee’s car conducted after he had been handcuffed and placed in patrol car); see also Thornton, 541 U.S. at 628 (Scalia, J., concurring in the judgment, citing cases upholding searches conducted after arrestee had been handcuffed and secured in patrol car). We do not, however, read Belton or Thornton as abandoning the Chimel justifications for the search incident to arrest exception. See Thornton, 541 U.S. at 621 (“In all relevant aspects, the arrest of a suspect who is next to a vehicle presents identical concerns regarding officer safety and the destruction of evidence as the arrest of one who is inside the vehicle.”); Belton, 453 U.S. at 460 n.3 (“Our holding today does no more than determine the meaning of Chimel’s principles in this particular and problematic context. It in no way alters the fundamental principles established in the Chimel case regarding the basic scope of searches incident to lawful custodial arrests.”). Because neither Belton nor Thornton addresses the precise question presented here, we must, if we are to maintain our constitutional moorings, rely on Chimel’s rationales in reaching our holding.4

4 Other courts have followed this approach as well. See Ferrell v. State, 649 So. 2d 831, 833 (Miss. 1995) (holding that search of arrestee’s car conducted after he had been handcuffed and placed in patrol car did not fall within search incident to arrest exception because the rationales underlying the exception were absent); State v. Greenwald, 858 P.2d 36, 37 (Nev. 1993) (same, citing Chimel).

This puts the case in context, IMO. Most courts have disagreed with the Arizona Supreme Court's approach, which is based on what a few cases didn't say. Not a crazy argument, but the state's position isn't new, and it's been accepted by other courts.

[Lemur866]

Originally Posted by Loach

Sorry that is wrong. The courts, including SCOTUS has upheld that there is a need for holding people for investigation. There has never been a definitive time limit for when an investigation becomes an arrest. For the courts it has been mostly a "we know it when we see it." Generally under 45 minutes is considered reasonable for an investigation. I'm sure Gfactor will find the cites in about 30 seconds. If you think about it, it makes sense.

Interesting. But surely, if you ask "Am I free to go?" then the cop either has to tell you "yes" or "no". If he says yes, then you can get back in your car and drive away. If he tells you "no" then you can't. But a cop can't just order you to stay put for no good reason can he? And anyway, from the detainee's point of view, what's the difference between being detained by the cops and being arrested?

[Loach]

Originally Posted by Lemur866

Interesting. But surely, if you ask "Am I free to go?" then the cop either has to tell you "yes" or "no". If he says yes, then you can get back in your car and drive away. If he tells you "no" then you can't. But a cop can't just order you to stay put for no good reason can he? And anyway, from the detainee's point of view, what's the difference between being detained by the cops and being arrested?

Nope he can't tell you to stay put for no good reason. But there is no law saying you have to have that reason explained to you. Basically there has to be a reasonable suspicion for him to investigate. For instance if there was a report of an armed robbery and someone fitting the description is in the area they can be held until there is an investigation to find out if they are involved. It wouldn't make sense if there was a suspicion that needed to be investigated but the suspect was allowed to walk away because he said the magic word. Image that press conference. "Officers briefly detained someone fitting the description of the murder suspect but had to let him go because he said he wanted to go home. No further leads at this time." As for your last question the difference is time. The courts have ruled that it has to be a reasonable amount of time. They have not been completely specific about how much time is reasonable.