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  #51  
Old 06-10-2019, 04:57 PM
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Originally Posted by steronz View Post
It's not that I "don't like it," I don't have a dog in this fight other than I think it's an interesting thought experiment. I don't really care one way or another.

Consider the scenario laid out in the OP, with some added details.

You pull me over one night for speeding in my 1985 Ford Crown Victoria station wagon. The front windshield and driver/passenger front windows are untinted, but the rear passenger windows and cargo area are all completely black in accordance with Ohio law. You ask me if anyone else is in the vehicle. "No sir, I'm alone." You ask me to roll down the rear window. "I'm sorry officer, it's a 35 year old car and the power windows are broken back there."

Barring any other probable cause to suspect that someone else is in the back seat, what's your next step?
In my state, like many, the tint ratio is 50% light for front windows/windshield, 35% for rear. I din’t Give a rip about Ohio as I don’t work there.

In your scenario there are a couple of things I could do. I could ask you if I can look in the back seat from outside the open door to confirm nobody else was present.

If you refuse I could order you out if the car and as the front door is open I could light up the back seat with my collapsible flashlight and see who is back there. I could place you in the back of my squad and drive around facing the front of your car and blast the spot light through your windshield also illuminating the back seat area.

Or in the name of officer safety I could just open the back door and look, without entering the vehicle. THAT might be a search, but not an illegal one. Remember, the courts have consistently ruled in favor of officer safety.
  #52  
Old 06-10-2019, 05:14 PM
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Originally Posted by UltraVires View Post
It seems odd in the extreme, almost like having your curtains drawn is suspicion that you are up to something illegal in your house.
No it isn’t. 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 it’s 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 it’s because of traffic law, not a privacy invasion.

You seem to think I ‘m 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.

Last edited by pkbites; 06-10-2019 at 05:16 PM.
  #53  
Old 06-10-2019, 05:20 PM
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Originally Posted by pkbites View Post
Or in the name of officer safety I could just open the back door and look, without entering the vehicle. THAT might be a search, but not an illegal one. Remember, the courts have consistently ruled in favor of officer safety.
So in my scenario you're saying that you can just ignore my refusal to consent to a search and open up the rear door without any probable cause to verify that it's empty back there "in the name of officer safety," but if I drove a cargo van you couldn't? Is it because you suspect there's a padded seat behind that door and not a flat loading floor? This really seems like an odd distinction.

Last edited by steronz; 06-10-2019 at 05:21 PM.
  #54  
Old 06-10-2019, 05:43 PM
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but if I drove a cargo van you couldn't? Is it because you suspect there's a padded seat behind that door and not a flat loading floor? This really seems like an odd distinction.
I told you the cargo van scenario was tricky.
  #55  
Old 06-10-2019, 06:45 PM
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Originally Posted by pkbites View Post
If I say “Joe got slammed with 5 speeding tickets in a week” would you assume the officers slammed those citations right on his face?

If I were to say “Joe got so many traffic tickets the state yanked his driver license” would you assume someone from the DOT actually grabbed his license card and yanked it out of his hand? These are just figures of speech. Get over it.
Great job avoiding my question.
  #56  
Old 06-10-2019, 07:01 PM
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Or in the name of officer safety I could just open the back door and look, without entering the vehicle. THAT might be a search, but not an illegal one. Remember, the courts have consistently ruled in favor of officer safety.
So you, with a straight face, would go in front of a judge and say
1) I asked the driver if I could search the car and he said no
2) The driver said no one was in the back and there was no indication of anyone in the back when talking through his window.
3) When the driver opened the door to exit the car I could not observe anyone in the back
4) I looked through the two untinted front windows and did not see any indications of anyone in the back
5) I looked through the windshield at every possible angle and did not see any indications of anyone in the back
6) I shone my flashlight through the back windows which although tinted were not 100% opaque and did not see any indications of anyone in the back

So, your honor, I was still reasonably afraid that someone was in the back seat so I opened the door and scanned the contents of the back since hey the door is open now.
  #57  
Old 06-10-2019, 07:12 PM
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Originally Posted by Saint Cad View Post
I don't think it was nitpickery. If a person is obeying your order and getting out of the car, are you allowed to grab them and physically move them away from the car (yanking them) which prevents them from blocking your view of inside the car with their body and also preventing them from shutting the car door so that you can (plain-view) search the back seat over the driver's refusal?

Because you basically said that's what you are allowed to do.
Every job has its jargon. Using the word “yank” when talking about getting people out of a car means simply getting them out of the car. 99% of the time that’s means telling them to get out of the car and they do with no contact made. Don’t get hung up on the jargon.
  #58  
Old 06-10-2019, 10:22 PM
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Originally Posted by Loach View Post
Every job has its jargon. Using the word “yank” when talking about getting people out of a car means simply getting them out of the car. 99% of the time that’s means telling them to get out of the car and they do with no contact made. Don’t get hung up on the jargon.
Thank you. I’m not the best at explaining this type of things to the teeming knowitalls.
  #59  
Old 06-10-2019, 10:38 PM
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Originally Posted by Saint Cad View Post
So you, with a straight face, would go in front of a judge and say
1) I asked the driver if I could search the car and he said no
2) The driver said no one was in the back and there was no indication of anyone in the back when talking through his window.
3) When the driver opened the door to exit the car I could not observe anyone in the back
4) I looked through the two untinted front windows and did not see any indications of anyone in the back
5) I looked through the windshield at every possible angle and did not see any indications of anyone in the back
6) I shone my flashlight through the back windows which although tinted were not 100% opaque and did not see any indications of anyone in the back

So, your honor, I was still reasonably afraid that someone was in the back seat so I opened the door and scanned the contents of the back since hey the door is open now.
Nowhere did I indicate a scenario involving all of those things at once in my posts. If I reasonably believed there was nobody in the back by any one the maneuvers I described that would be the end of it. But until I’m reasonable sure nobody is in the back I can proceed, step by step, until I am.

Please show me a case going back to January 1982 of [whomever] vs Peter K Beitz USSC or even WSSC that ruled I did wrong. And by me I mean any LEO.

BTW, this stuff doesn’t actually happen very often. At most I’ll have some dink insist he only has to show me his license through the window and not hand it to me for inspection. Most of the time someone will open the back window or door to show there is nobody back there. And when they don’t one or 2 of the techniques tends to answer the question and that’s that.
  #60  
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.
  #61  
Old 06-10-2019, 11:11 PM
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Originally Posted by pkbites View Post
Nowhere did I indicate a scenario involving all of those things at once in my posts. If I reasonably believed there was nobody in the back by any one the maneuvers I described that would be the end of it. But until I’m reasonable sure nobody is in the back I can proceed, step by step, until I am.

Please show me a case going back to January 1982 of [whomever] vs Peter K Beitz USSC or even WSSC that ruled I did wrong. And by me I mean any LEO.
I think the issue is the contention that if a driver refuses a search an LEO can still open the back door (assuming tinted windows) anyways saying, "I was checking to see if anyone was in there." thereby nullifying (at least in part) the 4th Amendment.
  #62  
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.
  #63  
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.
  #64  
Old 06-11-2019, 12:47 AM
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Here’s 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.
  #65  
Old 06-11-2019, 01:07 AM
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Originally Posted by pkbites View Post
Here’s 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?
  #66  
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 don’t have to show ID.

You missed a key factor In the scenario I gave. While a real case, this is for fun so don’t get pissed.
  #67  
Old 06-11-2019, 03:03 AM
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Originally Posted by pkbites View Post
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 don’t have to show ID.

You missed a key factor In the scenario I gave. While a real case, this is for fun so don’t 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.
  #68  
Old 06-11-2019, 05:38 AM
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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.
Shouldn't be too hard to get the helmet off once you've got him handcuffed. I've seen this done to perps who flee on a bike and then crash.

I'll say yes, the officers did have legal authority to require helmet removal. Two issues I can think of. The first is the obvious need to confirm the ID of the rider. The second is that a helmet may provide the rider with protection in a wrestling match, serving as impact armor, an OC spray shield, and a bludgeoning weapon; making him remove his helmet is the equivalent of confiscating a contact's legally-possessed knife, giving the officer the confidence that he (the officer) will have the upper hand if any sort of physical confrontation does occur.
  #69  
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 don’t do anything to give probable cause for a search. Not all criminals are stupid, just a sizable percentage.
  #70  
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.
  #71  
Old 06-11-2019, 11:17 AM
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I do practice in the Fourth Circuit, but do very little federal criminal work. I haven't read those cases, but if they say what you picked out, then I disagree vehemently. SCOTUS will have to have the final say nationwide, so it may very depending on your state.
Stanfield very clearly stands for that proposition. Brown is a little weirder because it's not a traffic stop, it's car in a parking lot.

Are you aware of contrary authority? What's the rule in West Virginia? A limited KeyCite shows that Stanfield appears to have been adopted by a handful of states and a few other federal circuits. Most of the cases to the contrary deal with whether or not the interior of the vehicle was actually obscured and/or whether or not the initial seizure was lawful. It might be that there is some dispute in the courts on this subject, but I'd be interested in reading the contrary authority. I find Stanfield very persuasive from an officer safety standpoint (i.e., if you accept the Terry rationale of for the "protective search").
  #72  
Old 06-11-2019, 11:32 AM
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Originally Posted by pkbites View Post
No it isn’t. 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 it’s 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 it’s because of traffic law, not a privacy invasion.

You seem to think I ‘m 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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Originally Posted by Loach View Post
Every job has its jargon. Using the word “yank” when talking about getting people out of a car means simply getting them out of the car. 99% of the time that’s means telling them to get out of the car and they do with no contact made. Don’t 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.
  #73  
Old 06-11-2019, 11:43 AM
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Stanfield very clearly stands for that proposition. Brown is a little weirder because it's not a traffic stop, it's car in a parking lot.

Are you aware of contrary authority? What's the rule in West Virginia? A limited KeyCite shows that Stanfield appears to have been adopted by a handful of states and a few other federal circuits. Most of the cases to the contrary deal with whether or not the interior of the vehicle was actually obscured and/or whether or not the initial seizure was lawful. It might be that there is some dispute in the courts on this subject, but I'd be interested in reading the contrary authority. I find Stanfield very persuasive from an officer safety standpoint (i.e., if you accept the Terry rationale of for the "protective search").
There is no case in West Virginia and I haven't had the opportunity to review your cases. You may be right that many states and many circuits endorse that rule. But I am not in a position to comment yet, but my first inclination stands.

I disagree that Terry would apply here. In Terry, the officer must have a reasonable articulable suspicion that both: 1) crime is afoot, and that 2) the suspect of that crime is armed and dangerous.

Even if we accept that speeding means crime is afoot, which I would dispute, there is nothing additional (in these automatic cases) to support a reasonable articulable suspicion that the driver is armed and dangerous. Sure, a non-zero number of people stopped for a traffic offense will attempt violence, but the suspicion must be individualized, and that suspicion is random. You might as well say that every police encounter on the street justifies a Terry stop.

And even if you get past that hurdle, you don't have any reason to believe, even if the hunch is correct that there are backseat passengers, that those passengers have committed crimes or are armed and dangerous. The officer cannot possibly believe that as he does not even know if there are passengers. Imagine that testimony: "Your Honor, I didn't know if someone was in the backseat, but if there was someone, that son of a bitch was committing a crime, he had a gun, and would have used it!"

Further, if tinted windows apply, it would seem as if panel vans would be subject to automatically having their rear doors open, or RVs would be able to be searched fully because a person could be hiding anywhere.
  #74  
Old 06-11-2019, 11:51 AM
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Is it the state or the date?
Both.

Wisconsin was one of, if not THE last state to put photos on driver licenses. So in the early 80’s we had a alot of cases of people using other people’s licenses who looked like them on paper. One needed a state ID card (which were issued by the county Register of Deeds Office for some reason) in order to buy beer but no photo ID was needed to drive a car.

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.

So the guy took the helmet off and he did match the description on the non-photo license. The judge called him an insufferable jackass for wasting everyone’s time. We issued him a citation for whatever the violation was and kept the license as bond (we did that in those days). He then was free to go.

And it wasn’t him!

A month later a very pissed off man came into court demanding to know why he got a court notice for a traffic ticket he never received. Turns out his driver license was stolen out of a locker at the YMCA.

But I remembered what the other guy looked like. About 4 months later I stopped a car in a county park for something. Someone was sitting in the back, kind of curled up and facing out the opposite window. I lit him up with my flashlight and demanded he face me.

It was helmet boy! Now under arrest on a John Doe warrant.

Not too long after that the state finally put pictures on driver licenses.

Always get a look at who’s in the back seat.
  #75  
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. 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?
  #76  
Old 06-11-2019, 12:18 PM
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Originally Posted by UltraVires View Post
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 aren’t free to leave, hence “seized”. This is one reason why passengers have the right to challenge the legality of the stop. If they weren’t being seized they would not have that right.
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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.
  #78  
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 06-11-2019, 01:11 PM
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[nitpick]

a ass

[/nitpick]
what?
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Old 06-11-2019, 01:33 PM
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what?
The original quote is:

Quote:
"If the law supposes that," said Mr. Bumble, squeezing his hat emphatically in both hands, "the law is a ass — a idiot. If that's the eye of the law, the law is a bachelor; and the worst I wish the law is, that his eye may be opened by experience — by experience."
  #81  
Old 06-11-2019, 01:36 PM
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[nitpick]

a ass

[/nitpick]
Dont pick your ass in public, son.


  #82  
Old 06-11-2019, 01:54 PM
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Originally Posted by Telemark View Post
The original quote is:
ah, got it.
  #83  
Old 06-11-2019, 02:52 PM
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Originally Posted by pkbites View Post
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 aren’t free to leave, hence “seized”. This is one reason why passengers have the right to challenge the legality of the stop. If they weren’t 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.
  #84  
Old 06-11-2019, 02:58 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.
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.
  #85  
Old 06-11-2019, 03:16 PM
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Originally Posted by pkbites View Post
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).

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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.

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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.
  #86  
Old 06-11-2019, 03:38 PM
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Originally Posted by Tired and Cranky View Post
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.
  #87  
Old 06-11-2019, 04:30 PM
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Originally Posted by Leo Bloom View Post
[nitpick]

a ass

[/nitpick]
[nitpick]

What I wrote was fine, since it wasn't a direct quote.
So you really need a better excuse to brag that you know the source.

[/nitpick]
  #88  
Old 06-11-2019, 04:46 PM
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Originally Posted by steronz View Post
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.
  #89  
Old 06-11-2019, 07:43 PM
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Originally Posted by Tired and Cranky View Post

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.
My bolding. The level of proof needed to stop a car is a reasonable articulable suspicion not probable cause. In order to write a summons for a violation or conduct a search there must be probable cause but not to stop a car.

Last edited by Loach; 06-11-2019 at 07:44 PM.
  #90  
Old 06-11-2019, 08:20 PM
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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.
The totality of the circumstances would dictate whether I could or not. I’m sure pkbites would agree that he can’t routinely open up all the doors of a car just because. It is certainly not standard practice to open the doors on a car during a stop. However I can imagine circumstances where it might be reasonable to do so for my safety and how it would be easy to articulate my reasons why. In reality windows are voluntarily rolled down or passengers are made to step out of the vehicle and there is no great drama.

These threads are fun but they tend to devolve into pushing the hypothetical passed what I recognize as the reality of everyday police work. In 21 years of police work I’ve physically “yanked” maybe 3 people out of a car. The most memorable time was someone wanted on a murder warrant out of North Carolina. I have never had to open doors during a routine car stop because I thought someone might be hiding in the car.

The case law mentioned in this thread tend to lean towards officer safety and acknowledge that dealing with a car is different than dealing with immovable property. In general if the officer is acting in good faith he will be on the side of the law. If he is trying to push the envelope to get around the 4th amendment he may find himself named in the new case law.

Last edited by Loach; 06-11-2019 at 09:08 PM.
  #91  
Old 06-12-2019, 05:11 AM
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In response to OP's questions.

Legally? You have the right to object, cop is supposed to respect that objection. If he overrides it, he better have a damn good (legal) reason to do so.
Realistically? He can make life hell for you, without even breaking a sweat (or the law).

Example.
He can, quite honestly, state that he smells "something funny" in the car. Get a K9 to do official drug sniff. K9 can be instructed to detect on command, you know? Once they have K9 verification, ****anything**** unidentified in your car can be cause for arrest. Got a half-eaten marshmellow under your seat? "That looks like meth". Got some trampled small leaves in your car carpet "that looks like marijuana". Not to mention the infamous "you're under arrest for resisting arrest" theme.
All very unethical, and ALL VERY LEGAL.

Don't mess with the cops.
If your cops is a good guy, you are wasting the time and patience of a hardworking honest public servant.
If your cop is a bad guy, you are pissing on a sleeping bear.

Either way, its a bad idea.
  #92  
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.
  #93  
Old 06-12-2019, 07:01 AM
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Originally Posted by Cheesesteak View Post
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 . . .
  #94  
Old 06-12-2019, 07:06 AM
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Originally Posted by Cheesesteak View Post
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.
At a more abstract level, all that is saying is that people will hide bad things: guns to use in violence, drugs, dead bodies, etc. and people will want to keep those things private. People also want to keep other, legal things private. We have a Fourth Amendment that guarantees you and I the right to that privacy unless some exceptions, found in the law, allow the government to invade that privacy.

A free floating "officer safety" rationale is simply not one of them, no matter how many times the police want to chant that mantra. The fact that the jargon is that they "yank" people around, a word used by even the good cops that we have on this board, is disturbing as it shows the little use that the industry as a whole has for the privacy rights of individuals that they encounter.

The line of what is a "reasonable" intrusion has been drawn in generalities in hundreds of cases. What is always requested by the police is the next step which on its face will seem reasonable as compared to the very last intrusion requested and granted. And then the next.

But when you go back to basic law, there is no crime in having a back seat passenger, and the speculation that you might have one or two, and that those possible passengers will start shooting at the officer is the type of wild speculation that has never before allowed an intrusion into your private vehicle (again, as an automatic rule and without some sort of reasonable articulable suspicion).

Otherwise, there is no limiting principle. It's easy to point to something, declare it desirable for officer safety and then "balance" the intrusion against the thought of a dead police officer. When you do that the intrusion, any intrusion, will be reasonable when couched in those terms. That's why the law doesn't do that except when it goes astray like in Mimms and Wilson, and it is simply unprincipled and not supported by general Fourth Amendment law to go any further down that road.
  #95  
Old 06-12-2019, 07:09 AM
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Originally Posted by Cheesesteak View Post
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.
Why the back seat, and not, say, the trunk? Or the rear of a cargo van? Gun toting thugs could be hiding in those places, but nobody's saying an officer can summarily open either compartment to check for passengers without some reason to believe that someone's back there.

Clearly Loach is correct in that in order to address the question we've pushed the hypothetical past the point of normal police work. The GQ answer to the OP's question is no, an officer can't make someone lower their rear windows because that's not always technically possible. And the GQ answer to whether or not an officer can hence open the rear doors is that the officer would need a reasonable reason to do so for his safety and be acting in good faith, per Loach's again excellent summary. What's left is a supreme court sort of issue where we wonder what would happen if an officer took a driver's refusal to lower the rear tinted windows, and no other reasonable belief that a person was in the back seat, as sufficient reason to open the door. And this will probably never get tested in the real world because we've learned that's not what happens. But I don't see the harm in acknowledging the hypothetical and thinking about it, rather than dismissing it out of hand and saying "of course an officer will be able to look in there, because safety!" It's a message board after all, and this is just entertainment
  #96  
Old 06-12-2019, 07:10 AM
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Unless you have something to hide, it is best to cooperate with law enforcement. Any lawyer will tell you, "Make your protests in court."
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  #97  
Old 06-12-2019, 07:13 AM
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Unless you have something to hide, it is best to cooperate with law enforcement. Any lawyer will tell you, "Make your protests in court."
Curiously, when I was trying to find cites for this thread I found one of those lawyer "what to do if you get pulled over" pages that said if an officer asks you to get out of your vehicle, you should raise your windows and lock your doors as you exit. There are ways to cooperate with law enforcement that will nevertheless piss off an LEO.
  #98  
Old 06-12-2019, 07:28 AM
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But when you go back to basic law, there is no crime in having a back seat passenger, and the speculation that you might have one or two, and that those possible passengers will start shooting at the officer is the type of wild speculation that has never before allowed an intrusion into your private vehicle (again, as an automatic rule and without some sort of reasonable articulable suspicion).
Nobody is suggesting that having back seat passengers is a crime. The suggestion is that not knowing the number of people you've detained during the traffic stop is a significant security risk. It places the officer in a situation of profound ignorance.

Why not the trunk? Because a cop can go an entire career without finding someone in the trunk, and can't go down a city block without seeing someone in a back seat.

Is it "reasonable" to say that under certain circumstances (blacked out windows) that an officer is legally barred from confirming the number of people present during the traffic stop?
  #99  
Old 06-12-2019, 07:42 AM
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And yet the trunk with the shotgun wielding dude hidden within is off limits . . .
Trunk Monkey!
  #100  
Old 06-12-2019, 08:20 AM
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Originally Posted by steronz View Post
Why the back seat, and not, say, the trunk? Or the rear of a cargo van? Gun toting thugs could be hiding in those places, but nobody's saying an officer can summarily open either compartment to check for passengers without some reason to believe that someone's back there.
I think the difference is that someone in a dark space behind heavily-tinted glass has a tactical advantage: they can see you, but you can't see them, so they can aim/shoot at you and you won't even see it before they pull the trigger. OTOH, a person in a trunk or in the back of a windowless van does not possess such an advantage. They may still be able to pop the trunk or open the door and climb out, but that's not likely to go unnoticed by the cop.
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