You refuse a policeman's request to look in your vehicle. What usually happens next?

Factual Questions
21

You can delete “in my state” and add “in the United States,” although the glove box probably cannot be searched if it is closed. Actually, I should add a caveat that this is just Fourth Amendment jurisprudence. Your state may provide a greater level of protection than the Fourth Amendment does. But I’m not doing a fifty state legal survey for you people. :wink:

Car search cases are among the most complex and fact-intensive Fourth Amendment cases that the courts deal with. What follows is, of course, not legal advice, and I’m not your lawyer, so don’t call me if you get pulled over. I mean it!

This page lists most of the leading cases, and they lay out an interesting story. This chart (warning: pdf) lists the types of stops under the Fourth Amendment. Scroll down to the fourth page to look at vehicle and container searches.

Also, “wingspan” is an important consideration, and that’s the basis for the search that crowmanyclouds posted about. See New York v. Belton. In Belton, the United States Supreme Court held that the warrantless search of the pocket of the defendant’s jacket in the car was unlawful, because the defendant was outside the car and already had been arrested. As a result, what was inside the car was outside the defendant’s reach, and so could not be searched.

In other words, as crowmanyclouds noted, a search of a person’s “wingspan” – “the area ‘within his immediate control’” – is not generally a Fourth Amendment violation.

So to get to the OP: the police can search the boxes in the back seat of your car under a couple circumstances: if you are inside the car, and the boxes are open and within your reach, and you are under arrest (i.e., you are getting a ticket). Alternatively, the police can search all closed containers (including boxes, luggage, the glove compartment and the trunk) if they have probable cause for the search. The probable cause must arise before the search is initiated and must be such that, if a magistrate were there with the cops, the magistrate would issue a warrant. See United States v. Ross.

Did I mention that the car cases are really confusing? :wink:

22

Unless New Jeresey separated from the United States while I was watching The Tonight Show this evening, your statement is untrue. New Jersey still being part of the United States, the Fourth Amendment still applies, and it forbids unreasonable searches. Case law: Carroll v. US, Katz, Whren, etc all delineate what circumstances justify warrantless seizures and searches.

What you said is utterly wrong.

23

And priceless. Finaly, a cop with a sense of humour while on duty.

24

Oh, no.

No, no no.

“Under arrest” is NOT the same as “getting a ticket,” despite what you may think Atwater v. Lago Vista stands for. Merely getting a ticket is NOT enough to permit a search. Now, if the officer chooses to effect an arrest, and is authorized by state law to make that arrest, even for offenses that may ordinarily garner only a summons, THEN he may search incident to the arrest. But he may not put the cart before the horse.

Now, he may search the areas within your immediate control even without probable cause if he has a reasonable, articulable suspicion concerning his own safety. That’s a lower standard than probable cause, but it’s not meaningless. Mere unparticularized suspicion or a hunch or guess is insufficient.

crowmanyclouds suggested this search could happen with no cause at all. Not so. Not so.

25

Let’s see if I can summarize your points of disagreement with me:
[ol]
[li]Getting a ticket is the equivalent of an arrest for purposes of a vehicle search[/li][li]That’s it![/ol]In other words, we agree that the closed boxes in the back seat, as posited in the OP can be searched only with probable cause or a warrant. We agree that wingspan can be searched either with probable cause, reasonable suspicion (Terry), or consent. (Or search incident to arrest, or impound, whatever – not relevant for these purposes.)[/li]
I clarify because your post seems to suggest that search of closed containers in a vehicle can happen with reasonable suspicion. I think you need probable cause for that.

I did not read crowmanyclouds as saying that a search could occur with no cause (except in the wingspan case, and I agree that there’s a threshold, however low, for wingspan). You’ll note that crowmanyclouds correctly states that the cops need consent or probable cause to search the trunk. I suppose I don’t really get your beef.

As to the ticket not equaling an arrest, I’ll see you in court, counselor. :wink:

26

A city police officer in the state in question. He taught me this little trick since the State Patrol uses the search warrant to intimidate the driver. I assume the idea of the pre-signed search warrant is to prevent a problem if the probable cause (sans warrant) is found by the courts to not be probable enough.

The trick is to make the officer fill out the search warrant to make them document their probable cause. I doubt that they would actually go this far unless they honestly believe that the search will result in something. Otherwise they are on the hook for harrassment charges.

27

That may depend on the state. In California, tickets used to be classified as misdemenors and as such the driver had certain legal rights. I’ve heard one story (possibly a UL) that one driver got out of a ticket because he was not Mirandized. The state changed these to “violations” thus stripping away a layer of rights from drivers in fighting a ticket.

28

Please explain what you mean by the bolded sentence in your quote. Here is what I am struggling with: as I see it, this is just a stunt, with no legal basis.

Here’s the breakdown:

(1) Cop pulls John over for brakelight.

(2) Cop asks to search the vehicle.

(3) John declines.

(4) Cop pulls out his pre-signed search warrant, and says “I’m just going to fill out this pre-signed search warrant then.”

(5) Maybe John is “intimidated” and gives consent. That makes it legal for the cop to search the car.

(6) However, if John still denies consent. Then the fact of the matter is that the search warrant is worthless. If the cop had PC then they (a) wouldn’t need a search warrant, and (b) wouldn’t need consent. If the cop doesn’t have PC (and only has a denial of consent) then they can fill out 30 pre-signed search warrants and they will not be able to legally search the car.

(7) So … if the Cop fills out his search warrant, then searches the car, then the cop is violating John’s rights, and the search is invalid. Anything stemming from that search is invalid.

So I guess I don’t see the point, other than intimidation. Other than persuading John to give consent, the pre-signed search warrant will not provide any legal justification for searching the car.

  • Peter Wiggen
29

I would guess that while the cop is writing out the ticket you are not free to leave ergo under arrest, at least for the time being?

30

What is there to stop the police office simply inventing probable cause? He could, for example, say that he smelled marijuana in the passenger compartment. How could you prove in a court of law that he didn’t?

31

I wish you had been with me all the times I’ve been stopped! :slight_smile:
My experience with everything from local cops to state troopers has been this,
lights go on I pull over,
officer comes up to my window I hand him my paperwork,
officer “would you mind stepping out of the vehicle”, (at this point one or two other patrol cars have shown up, minimum of three officers are now at the scene)
“do you have any weapons on you” (at this point the other officers are busy looking through my car)
me “no, no weapons but I do have a pocketknife and a Leatherman on my belt”
now I get to put my hands on the cruiser and assume “the position” get frisked,
“empty out your pockets”
by this time I’ve been run through the computer, cars all legal, me no wants or warrants,
I get all my stuff back
ok you can go

no ticket, no warning, no explanation why I was stopped!

Two stories,
I used to be a driver/bouncer for go-go dancers (it’s a suck ass job, and no you NEVER get laid :frowning: )

I’m driving through south Jersey 2 am, two drunk dancers in the back seat, my brother riding shotgun, get pulled over, officer asks if he can search the car, I say no, I just want to get my passengers home they both need to pee really bad, “ok then would you stepping out of the car so I can search you” yada yada yada, he lets me go, no ticket, no warning, no explanation why I was stopped. Two minutes later same cop pulls me over AGAIN, WTF, he forgot to give me my paperwork back :smack: !

Round two, basically the same but this time I’m in Patterson, unbeknownst to me the only reason a white guy would be in Patterson at 2 am is to buy crack, at least the only reason the cops could think of. They searched my car for 45 minutes, this included a 10 minute attempt to remove the backseat from my car!

Friend Bricker I was pretty sure all those searches were in violation of the Fourth Amendment, but as we both know, telling a cop that he’s violating your constitutional rights is a really dumb thing to do!

32

Related question: let’s say I get pulled over for a brakelight, the cop asks to search my car, I refuse, and he calls a canine.

Is there any limit to the time in which I can be detained by the cop in waiting for a dog to arrive? At what point could a person just say: “Look, I’ve been waiting here for (insert time duration), and the stupid dog you called still hasn’t arrived. I’ve refused a search and all you have on me is a busted taillight. Write the damn ticket or I’m leaving.”

Surely a person can’t be detained indefinitely just so the cop can hope that a person will break down and consent to a search after so many hours of waiting?

33

I don’t think that would go over very well.

34

My own personal anecdote went like this:

Officer: May I search your vehicle?
Me: No, a lot of people drive this truck and I don’t want to be responsible for what one of them might have left behind.
Officer:OK, have a nice night!

I think part of it that I was respectful and offered a clear reason why I would be against a search, but there was abosolutely no pressure put on me after I denied permission.

35

This is what I was wondering. In fact, I was under the impression that meeting the “burden” of probable cause was trivial to a police offer. “Probable cause” could be made up on the spot, as needed, and would be normally be backed up to the state-level courts. This assumes an ordinary defendant without deep pockets and extensive legal resources.

Really – are there many county courts nationwide that hold police officers accountable in the way Bricker and Peter Wiggen seem to be expecting? It’s nice to say, “well, if you appeal this enough times, the Constitution will be on your side, and you’ll beat it”. But what happens in reality … in the interim between the cop searching your car and getting the case heard to an appellate court that’s not covering for corrupt police/judges?

36

I’m not asking for advice on how to make cops happy. Surely police officers are not allowed to detain someone without reason indefinitely, no matter how much a cop would wish to the otherwise.

37

[QUOTE=Campion]
Let’s see if I can summarize your points of disagreement with me:
[ol]
[li]Getting a ticket is the equivalent of an arrest for purposes of a vehicle search[/li][li]That’s it![/ol] [/li][/quote]

Er… no. My main point of disagreement was you misread crowmanyclouds’s views, and endorsed his words by adding “…in the United States.” I think, if you’ll read his subsequent post, you’ll see he’s saying police can search your “wingspan” area at will. That’s not true, and, of course, not what either of us are saying.

Yes.

Certainly did not mean to imply that. Only areas within the immediate reach of the person that could contain a weapon are vulnerable to a Terry search, and only on the specific particularized suspicion of a threat to officer safety.

Trust me. We’ve just been down this road in Virginia, where our Court of Appeals reheard Moore v. Commonwealth en banc and agreed that an arrest for driving on a suspended license (a Class 1 misdemeanor in Virginia) was illegal.

(Admittedly, they also refused to supress evidence seized during that illegal arrest, saying that the arrest violated statutory, but not Constitutional, rights, and that therefore the exclusionary rule was not a remedy. More on that if you like…)

38

Being detained for questioning or ticketing is not the same as being under arrest. Personally, if a cop made me wait an hour for a K-9 unit to arrive, I would ask him every 30 seconds “Am I free to leave?” After about 15 minutes, I’d leave. Make him arrest me. Then I can nail him in court for a few things, like illegal detention. If the judge buys it. If I’m lucky that day. Of course, I’d probably get slapped in jail and left to rot for being a jackass.

39

Your final conclusion is absolutely correct.

However, I’d like to point out a minor nitpick concerning point 6. If a police officer has a search warrant, even one that is later found to lack probable cause, the evidence seized may possibly still be admissible. It all depends on why the search warrant lacked probable cause, and if the officer should have known that it did.

The purpose of the exclusionary rule is to deter police misconduct. When the police, in good faith, rely upon a search warrant, they are not acting improperly, and the evidence they seize is admissible, even if the search warrant is later found to be defective in some way. However, if the defects in the search warrant are so obvious that the police oculd not have possibly relied upon it in good faith, then they do not benefit from this exception.

So… in this instance, you’re right… the “pre-signed” search warrant is a sham, and no reasonable officer could rely upon it. But it’s not correct to say that ANY warrant lacking probable cause will automatically lead to the suppression of evidence seized in reliance thereupon.

40

These sorts of lies eventually catch up to those that try them.

If he falsely claims he smells marijuana, searches, and finds marijuana, then he’s pretty damn safe, I acknowledge. But presumably, when he tries this trick, he’ll be wrong more often than right. And people will complain. Word gets around.

I’ve seen police officers lie in court. It’s rare - very rare. But occasionally one would come along that decided he wanted to help his cases along, and, frankly, it became obvious after a while… both because his testimony was so perfectly tailored to the probable cause requirements, and because his fellow officers started dancing around his testimony. Never once did I hear an officer contradict another on the stand… but they’d say things like, “No, I was too far away to hear that conversation,” or “I don’t recall what happened.” And judges are not stupid. I’ve seen it happen – the moment a judge realized the officer was lying. It doesn’t take much… these judges have seen thousands of similar cases. They know what happens. They know when a story stinks. And while I admit I have rarely seen a judge come out and say he didn’t credit an officer’s testimony, they will do all sorts of other things to sink the Commonwealth’s case; they’ll get hypertechnical on procedure, sustain all sorts of objections, grant dismissal motions on flimsy grounds… and as a result, the Commonwealth Attorney learns pretty damn fast that a particular officer is the Kiss of Death because he’s a liar.

Which means that he won’t get called at all. If there were three officers at the scene, the Commonwealth will only call two of them. And the police get that message pretty quickly too, and that usually ends the trouble. Officer MakesItUp gets desk work, or public relations duty, or some other sinecure, and that’s that.