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Old 06-09-2019, 02:53 PM
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Can a cop make me roll down my tinted window?


Do NOT need answers fast and purely a hypothetical.

Cop stops me for a traffic violation and asks to search my car. I say no. My back windows are tinted so difficult to see inside my back seat and cargo area.

He looks through my front window to "search" my car. He asks me to roll down my back windows to look in and I say, "I do not consent to a search." He tells me that I need to obey a lawful order.

1) Is having me roll down tinted windows to see my back seat a search?
2) Do I need to consent?
3) Noting he did the typical cop equivocation and he didn't exactly state he was giving me a lawful order or that the order to roll down the window was lawful - is it actually a lawful order?
4) If it is not a lawful order, what are my remedies if he arrests me on the made-up law?

Last edited by Saint Cad; 06-09-2019 at 02:53 PM.
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Old 06-09-2019, 03:01 PM
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Originally Posted by Saint Cad View Post
Do NOT need answers fast and purely a hypothetical.

Cop stops me for a traffic violation and asks to search my car. I say no. My back windows are tinted so difficult to see inside my back seat and cargo area.

He looks through my front window to "search" my car. He asks me to roll down my back windows to look in and I say, "I do not consent to a search." He tells me that I need to obey a lawful order.

1) Is having me roll down tinted windows to see my back seat a search?
2) Do I need to consent?
3) Noting he did the typical cop equivocation and he didn't exactly state he was giving me a lawful order or that the order to roll down the window was lawful - is it actually a lawful order?
4) If it is not a lawful order, what are my remedies if he arrests me on the made-up law?
He has a gun and handcuffs, so yes. You pretty much have to do anything he sez. That doesnt mean you can't protest.

Of course if he orders you to do anything illegal, you can & should report him, or even sue.

In this case, a possible violation of your rights, about all that would happen is the the court might throw out any evidence thus obtained. It would take a good lawyer and some $$.

ianal.
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Old 06-09-2019, 03:32 PM
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My rule is physically cooperate with the guy with the gun (with verbal protests as needed), and let the judge sort it out later. YMMV
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Old 06-09-2019, 03:41 PM
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Speaking of this "I do not consent to a search" factor, what happens if you verbally say "I don't consent to a search", the police officer decides he heard "yes, sir, officer, search away!" and searches your stuff.

He finds tags ripped off from mattresses and arrests you for the crime.

If no voice or video recorder was running, how can you possibly prove you didn't consent to a search?

I would imagine that back in the 80s and early 90s, before recorders were common, everyone who looked like they might have drugs on them faced this issue.
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Old 06-09-2019, 03:51 PM
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Originally Posted by SamuelA View Post
Speaking of this "I do not consent to a search" factor, what happens if you verbally say "I don't consent to a search", the police officer decides he heard "yes, sir, officer, search away!" and searches your stuff.

He finds tags ripped off from mattresses and arrests you for the crime.

If no voice or video recorder was running, how can you possibly prove you didn't consent to a search?

I would imagine that back in the 80s and early 90s, before recorders were common, everyone who looked like they might have drugs on them faced this issue.
Removing the tags is not a crime for the consumer, just for the seller & manufacturer.


You cant prove, but it appears the courts are pretty accepting of " I did not consent".
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Old 06-11-2019, 02:58 PM
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Originally Posted by SamuelA View Post
Speaking of this "I do not consent to a search" factor, what happens if you verbally say "I don't consent to a search", the police officer decides he heard "yes, sir, officer, search away!" and searches your stuff.

He finds tags ripped off from mattresses and arrests you for the crime.

If no voice or video recorder was running, how can you possibly prove you didn't consent to a search?

I would imagine that back in the 80s and early 90s, before recorders were common, everyone who looked like they might have drugs on them faced this issue.
An old friend who had been a Sherriff's deputy used to brag about the good old days when he, a non-smoker, always carried a partial pack of Marlboros that had a joint or two inside. If he did not like the looks or attitude of someone he pulled over (especially latino) he tossed the pack in the car and charged them with possession. This would have been back in the Seventies and I'm not going to say where. Sweet, huh? You only have rights when someone is watching.

Last edited by TimfromNapa; 06-11-2019 at 02:59 PM.
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Old 06-09-2019, 03:57 PM
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How about we stick to the legal answers and not the off-topic tangents.
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Old 06-09-2019, 03:59 PM
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Saying "I do not consent" to a police officer mostly ensures an entertaining YouTube video.
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Old 06-09-2019, 06:44 PM
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Saying "I do not consent" to a police officer mostly ensures an entertaining YouTube video.
What's the Sovereign Citizen National Anthem?

SPOILER:
"Safelite repair, Safelite replace!"
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Old 06-09-2019, 04:58 PM
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1) the cop will radio for a K-9 officer to bring a drug-detection dog there to smell around your car. (This legally not a search of the car.)
2) You are required to wait a 'reasonable' time for them to arrive. ('Reasonable time' is defined by the local courts. Generally, it has to be more than an hour for courts to object.)
3) Meanwhile, the cop writes out a ticket for whatever traffic infraction he pulled you over for. And carefully inspects every external part of the car, lights, mirrors, dirt on license plate, for any other equipment violations.
4) If the dog detects an odor of drugs, then they have probable cause to search your car. Completely, open all doors, windows, trunk, remove the floor mats, unbolt the seats & look inside the cushions, etc. The search is legal even if they don't find any drugs. If they find something else (like an illegal firearm) in the vehicle, they may or may not be able to charge you for that. Courts vary on this, may depend on the exact circumstances.
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Old 06-09-2019, 05:46 PM
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IANAL but I think this would be covered under the officer's need to ensure the area is safe. I would say a judge would rule that the police can legally give you orders if their purpose is to give them a clear view into the vehicle and make sure you aren't holding a weapon or that there aren't other people concealed in the back seat.
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Old 06-09-2019, 08:29 PM
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IANAL but I think this would be covered under the officer's need to ensure the area is safe. I would say a judge would rule that the police can legally give you orders if their purpose is to give them a clear view into the vehicle and make sure you aren't holding a weapon or that there aren't other people concealed in the back seat.
This, when reasonable.

I have directed that a door be opened many times if there are people in the backseat above the age of a child and I have a concern for my safety.

I think the OP's case was that no one else was in the car. If that seemed pretty clear, then I wouldn't need to open another door. But if I'd seen more people in the car before initiating the stop, and now they're not obviously in view, then that gets more serious. Part of my standard procedure is to get a sense of how many people are in the car and how the driver is behaving before turning on my overhead lights.

Every situation is different, of course, and practice is different than theory. Variables include day/night, is this an isolated area vs a busy arterial street, reason for the stop (i.e. suspicious vehicle vs everyday traffic violation), type of vehicle (I've directed drivers of "lifted" pickups to get out and walk back to me), whether there are backup officers, present, etc. Both me and many of my partners have gotten half-way into a stop and then realized with a sickening feeling we should have gotten the windows down or called for more officers first.

Hope that helps,

AZRob
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Old 06-09-2019, 08:51 PM
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IANAL but I think this would be covered under the officer's need to ensure the area is safe. I would say a judge would rule that the police can legally give you orders if their purpose is to give them a clear view into the vehicle and make sure you aren't holding a weapon or that there aren't other people concealed in the back seat.
A few things to ponder:

1) Is this North Korea? Why can the police "give you orders" in a general sense? Yes, they can ask you to step outside the vehicle, but that is the only thing I know that they can order you to do in this context. Even then, a Terry frisk only applies. They cannot order you to empty your pockets.

2) Safe area. Again, Terry is the only doctrine I know of that allows an officer to check for safety.

3) Clear view. Yes, an officer can observe something in plain view, but he cannot make you place something in plain view.

4) Concealed persons. Does he have a reason to think you've kidnapped someone? Is having a rear seat passenger illegal?

With police officers spouting "I gave you a legal order" and "Officer safety" it would seem as if an officer could knock on your front door, ask to search your home and when you refused he could arrest you for disobeying his "lawful order."

Short version: I know of no authority by which an officer could make you open your rear window in this situation. He may order you to step out of the vehicle, but that doesn't get him a view inside. If he has probable cause to believe that there is illegal stuff in the back seat, he may search himself.
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Old 06-10-2019, 09:19 AM
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...Short version: I know of no authority by which an officer could make you open your rear window in this situation...
If this is true, the law is an ass. Night traffic stop, tinted rear windows. We won't allow a cop to take reasonable measures to be able to see the interior of a car clearly enough to know whether there's someone in the back seat?
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Old 06-10-2019, 09:45 AM
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If this is true, the law is an ass. Night traffic stop, tinted rear windows. We won't allow a cop to take reasonable measures to be able to see the interior of a car clearly enough to know whether there's someone in the back seat?
What about asking the driver, "How many people other than yourself in the vehicle?"
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Old 06-10-2019, 12:35 PM
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If this is true, the law is an ass. Night traffic stop, tinted rear windows. We won't allow a cop to take reasonable measures to be able to see the interior of a car clearly enough to know whether there's someone in the back seat?
In the case of my car, the window tint is light enough to see if someone is in there.
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Old 06-11-2019, 01:09 PM
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If this is true, the law is an ass. ....
[nitpick]

a ass

[/nitpick]
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Old 06-10-2019, 04:43 PM
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IANAL but I think this would be covered under the officer's need to ensure the area is safe. I would say a judge would rule that the police can legally give you orders if their purpose is to give them a clear view into the vehicle and make sure you aren't holding a weapon or that there aren't other people concealed in the back seat.
I've read that this is why windows that are tinted too dark are illegal. There could be a sawed-off shotgun aimed at the cop and he can't tell (thanks to the driver wanting to look like... what, a badass? What's the attraction of dark windows?).
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Old 06-09-2019, 06:43 PM
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Loach, care to comment, please? It would help to have some actually factual answers here, instead of the pure speculation so far inhabiting the thread.
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Old 06-09-2019, 09:32 PM
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I assume we're talking about US jurisdictions? In general, the 4th amendment is a little looser when it comes to automobiles; cops typically don't need a warrant, but they still need probable cause for a search. I don't know any case law off the top of my head on whether rolling down windows constitutes a search, but I believe it would be held to be such. A traffic violation is a bit broad; the mere fact that someone's speeding or ran a red light would not constitute probable cause to believe the car contained contraband, but that plus, say, nervous behavior on the part of the driver might muddy the "totality of the circumstances" analysis somewhat. If the violation was severe enough to warrant arrest, they can search your car incident to the arrest.
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Old 06-09-2019, 10:07 PM
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Are the windows of legal tint? If so, ordering you under duress to roll down a back tinted window would be a search, yes. New York v. Class permitted officers to "move" papers to see a VIN, that was not a search.

Arizona v. Hicks, police moved items to record serial numbers of electronics, etc. that was a Search. Without moving the items the serial numbers could not be seen. When any extra effort or manipulation etc. is needed to view a position, that is a search, IMO. He already saw the view in the front seat.

Of course he could have ordered you out of the car, and while the door was open looked in. I knew of case more on point, but I can't remember it now, I'll try.
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Old 06-10-2019, 08:58 AM
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In Louisiana, anyway, the only tint that is regulated is front seat. The rear can be blacked out.
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Old 06-10-2019, 10:05 AM
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The law makes certain distinctions between a car and a home, etc., for obvious reasons. Sure, there's potential for abuse if a cop claims he can't see clearly whether there's anyone in the back seat when he's really fishing to see what else he can see. But there's also potential for abuse if the law effectively allows someone to hide in the back seat of an automobile in a country awash with guns. There must surely be a balance in what a cop can reasonably ask for to ensure safety. Although IANAL, on common sense grounds I'm highly skeptical of Ultravires' claim that the law says otherwise.

Last edited by Riemann; 06-10-2019 at 10:07 AM.
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Old 06-10-2019, 02:05 PM
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The law makes certain distinctions between a car and a home, etc., for obvious reasons. Sure, there's potential for abuse if a cop claims he can't see clearly whether there's anyone in the back seat when he's really fishing to see what else he can see. But there's also potential for abuse if the law effectively allows someone to hide in the back seat of an automobile in a country awash with guns. There must surely be a balance in what a cop can reasonably ask for to ensure safety. Although IANAL, on common sense grounds I'm highly skeptical of Ultravires' claim that the law says otherwise.
I never said that "the law says otherwise." There is no case on point. The Mimms and Wilson cases stand for the proposition that an officer may order the driver and any passengers out of the vehicle without any individualized suspicion on the grounds that this extra intrusion, in addition to the traffic stop, is such a minimal burden that officer safety outweighs it and makes it reasonable.

You could make an argument that rolling down the back window is similar, but I think it is distinguishable because it contradicts a whole bunch of other cases. The officer is, in effect, forcing you to expose items that you wish to remain hidden and bring them into his plain view.

That goes against Terry itself. While you may briefly pat down a suspect (with reasonable suspicion) over his outer clothing to check for weapons, you may not do a general search for other items. You may not order the suspect to empty his pockets to bring items into plain view. Your proposal would do just that by requiring the driver to expose the contents of his vehicle to plain view.

It is also distinguishable from Mimms and Wilson because in those cases, all you were required to do was step outside of the vehicle instead of sitting inside it. No personal embarrassment (according to the Court) was had simply because you were standing instead of sitting. But in the traffic context, maybe I have a 12-pack of super-sized dildos sitting on the back seat I don't want anyone to see.

Further, what if the car is older and has only crank down windows in the back? The Constitution cannot seriously say that drivers of older cars have greater Fourth Amendment protection than those driving newer cars. Also most cars have a trunk accessible from the backseat that a person could crawl through. Do you get to search the trunk in every random traffic stop?

I am all in favor of police officers being safe, but in a free country, even one with guns (which is what makes it a free country, but another thread) that means that people will have protections from unlawful searches that will by definition put police officers in increased danger. I don't think it is proper to treat a regular citizen who has allegedly committed a most minor traffic infraction to be treated like a felon. That's not freedom at all.
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Old 06-10-2019, 02:32 PM
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when I pull over a car I am seizing all occupants of the vehicle. I can open all the doors and make everyone get out even if I can’t search the vehicle. When the doors are open I can legally look inside even if I can’t enter the vehicle.

I have the lawful authority to demand to see who is in the back of the vehicle. If the windows are tinted in such a way that they block plain view of the interior, I have the lawful authority to order them down.

If plain view is blocked and I can’t see who is in the vehicle, or be able to determine if there is a hazard to my safety, I have even more reason to order them down. The back seat area is an area of reach for a driver to obtain a weapon. Looking through a car window from outside is not a search. If the windows are tinted to prohibit plain view than ordering them open is not a search nor an illegal order.

This has already been settled by SCOTUS via a couple of cases.

If the windows are tinted to an illegal level I can prohibit it’s further operation with them up. In other words, roll them down or your not driving off. And the vehicle gets towed to impound.

Last edited by pkbites; 06-10-2019 at 02:35 PM.
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Old 06-10-2019, 02:39 PM
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when I pull over a car I am seizing all occupants of the vehicle. I can open all the doors and make everyone get out even if I can’t search the vehicle. When the doors are open I can legally look inside even if I can’t enter the vehicle.

I have the lawful authority to demand to see who is in the back of the vehicle. If the windows are tinted in such a way that they block plain view of the interior, I have the lawful authority to order them down.

If plain view is blocked and I can’t see who is in the vehicle, or be able to determine if there is a hazard to my safety, I have even more reason to order them down. The back seat area is an area of reach for a driver to obtain a weapon. Looking through a car window from outside is not a search. If the windows are tinted to prohibit plain view than ordering them open is not a search nor an illegal order.

This has already been settled by SCOTUS via a couple of cases.

If the windows are tinted to an illegal level I can prohibit it’s further operation with them up. In other words, roll them down or your not driving off. And the vehicle gets towed to impound.
What about the above mentioned case of crank windows? What if the power window regulators are broken? What if the vehicle owner removed the power window regulators and bolted the windows in place? What if you pull someone over in a Chevy HHR Panel Van which came from the factory with functional rear doors but no windows?

Seems to me that, at best, you can make a request of the driver, and then they can decide whether or not to lie to you about the functional state of the rear windows. Is that about correct?

eta: Also, what if someone is hiding in the trunk with a shotgun like in Jackie Brown? Are you allowed to order people to pop the trunk to make sure no one's hiding back there?

Last edited by steronz; 06-10-2019 at 02:42 PM.
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Old 06-10-2019, 02:52 PM
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Seems to me that, at best, you can make a request of the driver, and then they can decide whether or not to lie to you about the functional state of the rear windows. Is that about correct?
I can just yank everyone out of the vehicle and just look in while the doors are open, problem solved. Some Deps and Officers I know always have occupants exit on every traffic stop. I am just the opposite. I prefer to keep everyone inside the vehicle unless there are circumstances which require them getting out.

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Also, what if someone is hiding in the trunk with a shotgun like in Jackie Brown? Are you allowed to order people to pop the trunk to make sure no one's hiding back there?
The trunk is not a common area of plain view doctrine. But if I have reason to believe that someone is in the trunk, yes, I can order it open. There are several reasons why I’d want to know about someone in a locked trunk. But unless I have reason to believe someone’s in there, pooping the trunk could be an unlawful search.

Last edited by pkbites; 06-10-2019 at 02:55 PM.
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Old 06-10-2019, 02:34 PM
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That goes against Terry itself. While you may briefly pat down a suspect (with reasonable suspicion) over his outer clothing to check for weapons, you may not do a general search for other items. You may not order the suspect to empty his pockets to bring items into plain view. Your proposal would do just that by requiring the driver to expose the contents of his vehicle to plain view.
I think this actually applies because, conceptually, a darkened rear seat is comparable to an area of your body that cannot (somehow) be patted down. The tint prevents the officer from doing the legally allowed safety search of the rear area of the car.

Now, if it is settled law that they may NOT require the window be rolled down, the answer is to pull the driver and all passengers from the car, pat them all down, sit them in the cruiser and send them on their way once the ticket is written. If the cops partner takes that time to look closely from outside the car to see if there is any visible contraband, then that what will happen.
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Old 06-10-2019, 02:39 PM
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I never said that "the law says otherwise." There is no case on point. The Mimms and Wilson cases stand for the proposition that an officer may order the driver and any passengers out of the vehicle without any individualized suspicion on the grounds that this extra intrusion, in addition to the traffic stop, is such a minimal burden that officer safety outweighs it and makes it reasonable.
I'm not going to spend a whole lot of time looking, and you're certainly going to more experienced with these types of cases than I am, but on a brief search United States v. Stanfield (4th Cir. 1997) and United States v. Brown (D.C. Cir. 2003) seem to apply Mimms and Wilson (and Terry) and conclude that, when dealing with a vehicle with darkly tinted windows at night, an officer might be justified in opening the rear door and inspecting the inside for officer safety purposes.

Specifically, in Stanfield, the court reasoned:

Quote:
When, during already dangerous traffic stops, officers must approach vehicles whose occupants and interiors are blocked from view by tinted windows, the potential harm to which the officers are exposed increases exponentially, to the point, we believe, of unconscionability. Indeed, we can conceive of almost nothing more dangerous to a law enforcement officer in the context of a traffic stop than approaching an automobile whose passenger compartment is entirely hidden from the officer's view by darkly tinted windows.
After pointing to the concern in Mimms and Wilson about the dangers of traffic stops and the minimal burdens, etc., the court concluded:

Quote:
In contrast to the indisputably substantial government interest in protecting its law enforcement officials from the danger that inheres in the lawful stop of a vehicle with heavily tinted windows, the privacy and liberty interests implicated by the opening of such a vehicle's door for the limited purpose of determining whether the vehicle is occupied by one or several persons and whether the vehicle's occupants are armed or have access to weapons, are, although not unimportant, comparatively minor, and will always be so.
Brown appears to adopt Stanfield's reasoning and come to the same conclusion.

Now, I don't know if Stanfield has been overruled (you practice in the Fourth Circuit, right?), but I do think that it would apply to ordering a driver to lower his rear windows, at least long enough to determine if the "the vehicle is occupied by one or several persons and whether the vehicle's occupants are armed or have access to weapons." I also think the logic of it is pretty sound.
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Old 06-10-2019, 01:50 PM
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IIRC, there was a case recently that went to appeal basically decided - if the purpose and reason for the traffic stop was a particular violation, detaining the person beyond a reasonable time to write up the paperwork for the violation constituted "detained" and there needed to be probable cause for that. (In this case, they delayed for I think about 40 minutes for the K9 to arrive). Basically if they delay the driver (and car) more than the time it takes to write the ticket, and for other purposes, they are effectively arresting the person - and for that they need probable cause. Probably cause means a lot more suspicious circumstances than just bad tail light or poor lane change.

I would put "open the rear window" in the same category as "open the trunk" and it would appear to me to be a part of a search. If he can't see with the window up, it's not in plain sight, is it?
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Old 06-10-2019, 03:11 PM
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It is troublesome that a person can refuse a search yet an officer can open doors because someone might be there and then search the back seat under the plain-view doctrine.
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Old 06-10-2019, 10:49 PM
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I've once had the police appear frightened when they stopped me. My registration had expired, and the car was full of crap, because I friend was moving and had given me a lot of stuff.

I didn't notice the police officer behind me right away, and then I didn't feel safe pulling over for a while. So by the time I did, I think the officer thought there was going to be trouble.

When I handed him my ID, and he saw that the (expired) registration was in my name, I could see the relief on his face. Suddenly, the dicey encounter with a car thief had turned into a routine traffic stop of a scatter-brained middle-aged woman.

He was quite nice after that (although he did ticket me for the violation.) But I'd never realized how tense the police routinely are until I saw his whole aspect change like that. Even if it had been the stolen-car scenario, I was still a middle-aged woman, driving on a busy street, in broad daylight. But he was tense.
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Old 06-11-2019, 10:22 AM
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I've once had the police appear frightened when they stopped me. My registration had expired, and the car was full of crap, because I friend was moving and had given me a lot of stuff.

I didn't notice the police officer behind me right away, and then I didn't feel safe pulling over for a while. So by the time I did, I think the officer thought there was going to be trouble.

When I handed him my ID, and he saw that the (expired) registration was in my name, I could see the relief on his face. Suddenly, the dicey encounter with a car thief had turned into a routine traffic stop of a scatter-brained middle-aged woman.

He was quite nice after that (although he did ticket me for the violation.) But I'd never realized how tense the police routinely are until I saw his whole aspect change like that. Even if it had been the stolen-car scenario, I was still a middle-aged woman, driving on a busy street, in broad daylight. But he was tense.
Oh -- and I was really relieved the officer didn't ask to search my car. I had several bottles of my friend's wine. (He was moving across the country, and the moving company wouldn't take it.) And I was glad I had taken the precaution of hiding it under the gardening stuff. I'm not actually certain it was illegal to be carrying them in the back seat. I certainly couldn't have reached it while driving! But I was happy that issue didn't come up.
  #34  
Old 06-11-2019, 11:32 AM
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No it isnít. If the traffic stop was legal the officer has a safety concern to know how many people are in that vehicle. A traffic stop also presents a liability to the officer and his agency as long as he has the vehicle and itís occupants detained. I have the authority to know how many people I am detaining without it being an actual search. If the stop was for overly tinted windows itís because of traffic law, not a privacy invasion.

You seem to think I Ďm pulling this out of my nether regions. But these stops happen thousands of times every day in the U.S. and no court has ruled against what I and every other patrolman do. For someone who works in law you should know that.
1) If the stop was for illegally tinted windows, I might agree with you. We were talking about other minor traffic stops.

2) The US Supreme Court has not gone so far as to give you the authority to detain passengers.

Quote:
Originally Posted by Maryland v. Wilson, ft. 3
Maryland urges us to go further and hold that an officer may forcibly detain a passenger for the entire duration of the stop. But respondent was subjected to no detention based on the stopping of the car once he had left it; his arrest was based on probable cause to believe that he was guilty of possession of cocaine with intent to distribute. The question which Maryland wishes answered, therefore, is not presented by this case, and we express no opinion upon it.
It makes no sense that you could detain a passenger. The passenger did not commit a motor vehicle infraction. Unless you have RAS that the passenger committed a crime, he should be free to walk away from the stop like anyone else. Under what constitutional authority would you believe gives you the right to detain a passenger?

The Maryland Supreme Court in that case said that a passenger could absolutely walk away.


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Every job has its jargon. Using the word ďyankĒ when talking about getting people out of a car means simply getting them out of the car. 99% of the time thatís means telling them to get out of the car and they do with no contact made. Donít get hung up on the jargon.
You need better jargon. It is overly provocative to use that sort of language when talking about free people being stopped for minor infractions.

As far as these balancing tests, they are always indicative of an intent to deny rights to citizens. Anytime you see the phrase "the touchstone of the Fourth Amendment is reasonableness" in an opinion, you know it is a shitty opinion.

We don't generally balance rights of constitutional dimension to protect the government unless it deals with DUI, police safety, or some other pet issue that a vocal minority uses its political power to bring to the forefront. If we did that with all issues, then all privacy concerns would disappear. Surely on balance me having to endure one unlawful search of my home would be better than letting a murderer or rapist go free, but we never balance in that circumstance.

And this "reasonableness" argument is a tautology. As Justice Harlan said, "reasonable in comparison to what"? Like the balancing test, the stated goal is always laudatory and the intrusion minimal by comparison and therefore "reasonable." These cases are always one offs and grounded in nothing in the Constitution or in prior case law.

The better cases rest on the sound principle that all searches conducted outside the judicial process without a warrant are per se unreasonable except for the certain limited doctrines established by law. This is not one of them.
  #35  
Old 06-11-2019, 11:58 AM
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You need better jargon. It is overly provocative to use that sort of language when talking about free people being stopped for minor infractions.
No thanks. I use all sorts of provocative language in my life. Iím just naughty that way. I certainly wouldnít use job related slang in reports or on the stand. I can even criticize pkbites for using the term in this thread where precise language is important to fully answer questions of those who are unfamiliar to the subject. But internal slang between cops? Think about the poor writers of Blue Bloods. Do you want to put them out of a job?
  #36  
Old 06-11-2019, 12:27 PM
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No thanks. I use all sorts of provocative language in my life. I’m just naughty that way. I certainly wouldn’t use job related slang in reports or on the stand. I can even criticize pkbites for using the term in this thread where precise language is important to fully answer questions of those who are unfamiliar to the subject. But internal slang between cops? Think about the poor writers of Blue Bloods. Do you want to put them out of a job?
I appreciate your contributions to the thread. Do you have an opinion on the subject of the OP, since it seems this hasn't been tested in court? Namely, can you open a passenger-sized compartment on a stopped vehicle that you can't see into in order to verify that no humans are in it, as pkbites claims? Without any reasonable suspicion that someone is present, of course.

Last edited by steronz; 06-11-2019 at 12:27 PM.
  #37  
Old 06-11-2019, 12:18 PM
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1)

2) The US Supreme Court has not gone so far as to give you the authority to detain passengers

The Maryland Supreme Court in that case said that a passenger could absolutely walk away.
.
You need to reread Wilson and reread Brendlin.

The Maryland Supreme Court does not override SCOTUS nor does it affect other states.

A passenger is seized on a traffic stop and for my safety I can order them to stay in the vehicle or get out. If I can order them to stay in the vehicle I guess they arenít free to leave, hence ďseizedĒ. This is one reason why passengers have the right to challenge the legality of the stop. If they werenít being seized they would not have that right.
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Old 06-11-2019, 02:52 PM
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You need to reread Wilson and reread Brendlin.

The Maryland Supreme Court does not override SCOTUS nor does it affect other states.

A passenger is seized on a traffic stop and for my safety I can order them to stay in the vehicle or get out. If I can order them to stay in the vehicle I guess they arenít free to leave, hence ďseizedĒ. This is one reason why passengers have the right to challenge the legality of the stop. If they werenít being seized they would not have that right.
Brendlin still left the question unanswered. The holding in Brendlin was that the passengers are seized because a reasonable person in their situation would believe that they are not free to leave. Whether they actually are free to leave is another question and not relevant for the question presented in Brendlin. This "reasonable person would not believe" has been cited in hundreds of cases and applies whether or not an actual, legal seizure has occurred.


SCOTUS has never ruled that passengers may not walk away from a traffic stop and the entirety of the rest of the case law would suggest that they could.

You have no RAS to believe the passenger committed a crime, right? So you must let them go. Please cite one principal of Fourth Amendment law that suggests otherwise.
  #39  
Old 06-10-2019, 11:44 PM
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The 4th Amendment prohibits unreasonable searches. In essence, it precludes the authorities from engaging in "fishing expeditions." Whenever you are looking at a 4th Amendment case, keep this context in mind.
  #40  
Old 06-11-2019, 12:39 AM
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Note to self: if engaging in something illicit involving the rear compartment of a vehicle, use a panel van with no rear windows.
  #41  
Old 06-11-2019, 12:47 AM
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Hereís one for you: I was the back up Dep on a traffic stop where a motorcycle rider refused to take off his full face helmet to reveal himself. Without giving you the date involved, what were the issues involved and were we within our authority to force the helmet off? State was Wisconsin.
  #42  
Old 06-11-2019, 01:07 AM
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Hereís one for you: I was the back up Dep on a traffic stop where a motorcycle rider refused to take off his full face helmet to reveal himself. Without giving you the date involved, what were the issues involved and were we within our authority to force the helmet off? State was Wisconsin.
Consistent with your previous examples, if you have probable cause to pull the vehicle over, you apparently are allowed to identity all of the occupants and determine if they are of interest to law enforcement.

It would be possible for a person not revealing their face to hide their identity, using a counterfeit copy of a valid ID.

But even if you don't suspect that - although for bonus points, I'm going to assume there was an inconsistency between the ID the rider gave and the registration on the bike - it seems you likely have the power to check that.

Once you forced the helmet off, what was he hiding? Did you actually try to wrestle it off in the field or just place him under arrest for refusing to comply?
  #43  
Old 06-11-2019, 01:26 AM
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Consistent with your previous examples, if you have probable cause to pull the vehicle over, you apparently are allowed to identity all of the occupants and determine if they are of interest to law enforcement
I never claimed we can ID every one on a traffic stop, only detain them. Fact is, occupants other than a driver in my state donít have to show ID.

You missed a key factor In the scenario I gave. While a real case, this is for fun so donít get pissed.
  #44  
Old 06-11-2019, 03:03 AM
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I never claimed we can ID every one on a traffic stop, only detain them. Fact is, occupants other than a driver in my state donít have to show ID.

You missed a key factor In the scenario I gave. While a real case, this is for fun so donít get pissed.
Is it the state or the date? Mostly I am wondering how you 'force' someone to do something like remove a helmet. A simple sounding, thuggish sort of task is surprisingly tricky if as a law enforcement agency you are trying to minimize the chance of permanent injury or death.
  #45  
Old 06-11-2019, 10:09 AM
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Note to self: if engaging in something illicit involving the rear compartment of a vehicle, use a panel van with no rear windows.
Or just hide it and donít do anything to give probable cause for a search. Not all criminals are stupid, just a sizable percentage.
  #46  
Old 06-11-2019, 03:16 PM
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However, we did have the authoritah to verify that a violator matched the description on the DL (Height, Weight, Hair, Color, etc). So this cyclist had a full helmet with smoked shield and refused to take it off. Instead of fighting with the guy we took him into custody and right before a judge (you could still do that then). The judge told him to remove the helmet of he’d sit in a cell until the jail Deputies had time to come in and rip it off his head. No jargon insinuated. In those days the Deps at the jail would have literally ripped that helmet off. We probably could have done it at the stop site, but I was fairly new and so was the contact Deputy who originated the stop. [Emphasis added.]
I thought this would be the end of the story and I was surprised by how long he kept the helmet. Once you had probable cause to arrest him, he loses any privacy right to keep the helmet off, in my humble opinion. Removing it is justified both by the need to disarm him and to positively identify him (whether on the roadside or at the station).

Quote:
Originally Posted by Loach View Post
I use all sorts of provocative language in my life. I’m just naughty that way. I certainly wouldn’t use job related slang in reports or on the stand. I can even criticize pkbites for using the term in this thread where precise language is important to fully answer questions of those who are unfamiliar to the subject. But internal slang between cops? Think about the poor writers of Blue Bloods. Do you want to put them out of a job?
It's not really a big deal and you all have the freedom to talk how you choose but, I for one, would prefer that cops used less provocative language. I trust that pkbites didn't literally mean that he was yanking people around but that type of language normalizes the idea that police needlessly rough up the public. If this language reduces the public trust in the police or encourages even a single officer to abuse his or her authority, it causes real harm. And I realize your Blue Bloods quip is a joke but we have a similar problem - if popular depictions of police officers are all rowdy meatheads who abuse their authority, we run the risk of attracting rowdy meatheads to a job that is critical to preserving our public safety.

Quote:
Originally Posted by steronz View Post
I appreciate your contributions to the thread. Do you have an opinion on the subject of the OP, since it seems this hasn't been tested in court? Namely, can you open a passenger-sized compartment on a stopped vehicle that you can't see into in order to verify that no humans are in it, as pkbites claims? Without any reasonable suspicion that someone is present, of course.
I don't see where pkbites claimed that and I think I agree with everything he actually claimed. You posted your hypothetical but I think pkbites is rightfully dodging it because those won't be the facts if he is pulling open the back door to look for hiding passengers. If an officer needs to search for passengers, it is likely because he perceived there were people in the back seat based on whatever evidence is available (movement of or sound from the car after the driver left or the officer's furtive view of a passenger through the open driver's door or any window). He'll order the passengers out of the car and if no one comes out, he will assert that he needed to investigate further for his safety.

My opinion is that an officer opening a car door to look for people in the backseat is almost always going to be defensible under the Fourth Amendment jurisprudence. There is almost no meaningful Fourth Amendment protection for anything that happens in the passenger compartment of a car. Under the "automobile exception," police can stop a car without a warrant based on probable cause that a crime has been committed because cars are moveable. Carroll v. U.S., 267 U.S. 132 (1925).

Once a car is legally stopped, police can do a search incident to arrest to protect the officer's safety and to look for evidence. New York v. Belton, 453 U.S. 454 (1983). If the police reasonably believe that the suspect is dangerous, they can do a protective search of any part of the car that could contain a weapon that the driver could access, even if the driver is already in the officer's custody (because the suspect could escape, naturally). Michigan v. Long, 103 S. Ct. 3469 (1983). Cops can order the driver out of the car if they have lawfully stopped the car. Pennsylvania v. Mimms, 434 U.S. 106 (1977). They can also order passengers out of a car even if the officers have no reason to believe that any of the passengers committed a crime or are otherwise dangerous. Maryland v. Wilson 519 U.S. 408 (1997). Lawful arrests include arrests for an action that is not a crime if the officer incorrectly but reasonably believes it is a crime. Heien v. North Carolina, 135 S. Ct. 530 (2014). Police can do an "inventory search" of a seized car once they have arrested the driver and decided to impound the car. E.g., Colorado v. Bertine, 479 U.S. 367 (1987).

If the officer ordered people out of the car and no one exits, the officer can likely arrest any passenger who didn't get out for interfering with an investigation, failure to obey a lawful command, or something similar in your state.

If police can see in the car through a window or while a door is open, it doesn't even count as a search under the plain view doctrine. E.g., Coolidge v. New Hampshire, 403 U.S. 443 (1971).

None of this requires even dubious consent to a search. So, if pkbites needs to open a car door to look for passengers, one of these precedents or their progeny will most likely give him that authority.
  #47  
Old 06-11-2019, 03:38 PM
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I don't see where pkbites claimed that and I think I agree with everything he actually claimed. You posted your hypothetical but I think pkbites is rightfully dodging it because those won't be the facts if he is pulling open the back door to look for hiding passengers. If an officer needs to search for passengers, it is likely because he perceived there were people in the back seat based on whatever evidence is available (movement of or sound from the car after the driver left or the officer's furtive view of a passenger through the open driver's door or any window). He'll order the passengers out of the car and if no one comes out, he will assert that he needed to investigate further for his safety.
Thing is, he's not dodging the hypothetical -- he's responded directly to it, first in the OP, then to me, then again to a clarified version from Saint Cad. He keeps running at it head on.

What's he's dodging, I think, is stating the obvious -- that he wouldn't actually have any justification to open the rear door and look inside the back seat without, as you say, "whatever evidence is available" that someone is actually back there. Instead, he's starting with a belief -- that he's going to be able to look in that back seat no matter what, even though "I don't like it" -- and then working backward from there, saying that surely something would give him reasonable belief to check for passengers. And I'll freely grant that in the real world this would never happen, and he's probably not the kind of officer who would go ripping open back doors out of spite that someone didn't drop their tinted windows, 4th amendment be damned. That's not the way things work in the real world and he knows it about 10000x times better than I do. No argument there. This entire thread is nothing more than pedantry at this point.

Anyway, this is GQ and the existence of crank windows pretty much put the nail in the coffin of "an officer can order you to lower your tinted rear windows" question on page one. Crank windows > *.

Last edited by steronz; 06-11-2019 at 03:39 PM.
  #48  
Old 06-11-2019, 04:46 PM
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What's he's dodging, I think, is stating the obvious -- that he wouldn't actually have any justification to open the rear door and look inside the back seat without, as you say, "whatever evidence is available" that someone is actually back there. Instead, he's starting with a belief -- that he's going to be able to look in that back seat no matter what, even though "I don't like it" -- and then working backward from there, saying that surely something would give him reasonable belief to check for passengers.
The sad fact is I think that this would absolutely (and wrongfully) be upheld by the Courts as a "reasonable search" using the logic of: the cop just had to open the door because reasons and because the door was open it wasn't a real search because everything was in plain view.
  #49  
Old 06-12-2019, 05:38 AM
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Instead, he's starting with a belief -- that he's going to be able to look in that back seat no matter what, even though "I don't like it" -- and then working backward from there, saying that surely something would give him reasonable belief to check for passengers.
I think this comes from the base idea that the police can take reasonable steps to ensure their safety during a traffic stop. Given the gun-toting world we live in, an officer is going to need the ability to check one thing (among others) during a traffic stop, that is whether or not there is a person in the back seat.

If a person has designed their car in such a way as to make that safety check impossible without lowering windows or opening doors, the result isn't "Ha ha cop, you don't get to ensure your safety!" the result is a lowered window or opened door.

No matter how many hypotheticals you throw, pkbites is going to assert that he will take whatever steps you make necessary to ensure a reasonable standard of safety during the stop. Not the least of which is going to be knowing the exact number of people in the car.
  #50  
Old 06-12-2019, 07:01 AM
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No matter how many hypotheticals you throw, pkbites is going to assert that he will take whatever steps you make necessary to ensure a reasonable standard of safety during the stop. Not the least of which is going to be knowing the exact number of people in the car.
And yet the trunk with the shotgun wielding dude hidden within is off limits . . .
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