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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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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 06-09-2019, 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, 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, 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, 06:44 PM
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Originally Posted by Darren Garrison View Post
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, 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 06-09-2019, 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, 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, 09:50 AM
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What about asking the driver, "How many people other than yourself in the vehicle?"
The point is to ensure safety if someone has ill intent. How would that help?
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Old 06-10-2019, 09:54 AM
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What about asking the driver, "How many people other than yourself in the vehicle?"
You may as well ask the driver "are you planning to attack me?" The likelihood of an honest response to this question from someone with ill intent is equally probable.
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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, 10:22 AM
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The point is to ensure safety if someone has ill intent. How would that help?
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You may as well ask the driver "are you planning to attack me?" The likelihood of an honest response to this question from someone with ill intent is equally probable.
If the cop can articulate his concern and it is based on facts, then he can handcuff the driver and search the car.

From the police interactions I've been reading about daily, how can the driver ensure the cop doesn't have ill intent?
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Old 06-10-2019, 10:54 AM
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From the police interactions I've been reading about daily, how can the driver ensure the cop doesn't have ill intent?
Do you really think that restricting all cops from taking reasonable common sense measures to ensure their own safety is a sensible way to address the problem of bad cops?
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Old 06-10-2019, 11:20 AM
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From the police interactions I've been reading about daily, how can the driver ensure the cop doesn't have ill intent?
What does this have to do with the question of whether/why a cop might have the authority to order the rear windows be lowered?
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Old 06-10-2019, 12:00 PM
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Do you really think that restricting all cops from taking reasonable common sense measures to ensure their own safety is a sensible way to address the problem of bad cops?
Here's one problem that bugs me about all these "officer safety" arguments. If I were a criminal planning to kill a police officer, I wouldn't wait to reach for a gun when he's looking right at me with his hand near his holster. Not would I lurk in some backseat. I would obtain a rifle if possible, and fire as early in the encounter as feasible, when the ranges are long.

I would expect officers killed in traffic stops to have been engaged the moment they step free of their cruiser - that's the first moment their body is fully exposed and a criminal waiting in ambush should open fire right then.

If that doesn't happen, I would expect the outcome to be a peaceful encounter.

So it's one of those things - all those police shootings where this is exactly what happened, and the criminal waits to "go for his gun" until the officer has him at gunpoint and is shouting at him. And, surprise, in a scenario like this it turns out he wasn't going for a gun. Criminals may not always be smart but the average one is probably at least a marginally competent human.

Last edited by SamuelA; 06-10-2019 at 12:03 PM.
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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 06-10-2019, 01:41 PM
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Here's one problem that bugs me about all these "officer safety" arguments. If I were a criminal planning to kill a police officer, I wouldn't wait to reach for a gun when he's looking right at me with his hand near his holster. Not would I lurk in some backseat. I would obtain a rifle if possible, and fire as early in the encounter as feasible, when the ranges are long.

I would expect officers killed in traffic stops to have been engaged the moment they step free of their cruiser - that's the first moment their body is fully exposed and a criminal waiting in ambush should open fire right then.
Sure, if you intended all along to shoot a cop. I doubt that most shootings of cops are that premeditated.
Quote:
So it's one of those things - all those police shootings where this is exactly what happened, and the criminal waits to "go for his gun" until the officer has him at gunpoint and is shouting at him. And, surprise, in a scenario like this it turns out he wasn't going for a gun.
According to the Washington Post's database for 2019, that doesn't seem to fit most of the circumstances of police shootings.There have been 394 police shootings so far, of which 16 were of unarmed people and another 38 where the weapon is unknown. (Of the unarmed, about half were fleeing). So a very large majority of the time, he had a weapon of some sort, or it appeared that he did.

Quote:
Criminals may not always be smart but the average one is probably at least a marginally competent human.
That is also not necessarily an assumption I would make.

Regards,
Shodan
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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, 01:53 PM
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What does this have to do with the question of whether/why a cop might have the authority to order the rear windows be lowered?
Exactly what a cop can & cant order you do do is tricky. However, as said before the real answer is that the cop is right there, with a gun and handcuff, and you dont have the ACLU and a judge waiting to help you and give a ruling.



https://www.aclunc.org/our-work/know...hts-and-police
If you are stopped in your car, DO...
DO show your license, registration, and proof of insurance when asked, if you were driving.
DO keep your hands on the wheel and let the officer know what you are doing (ďIím going to reach for my registration now.Ē).
DO say ďI do not consent to a search.Ē
DO sign your ticket if you are given one. Otherwise, you may be arrested.
DO take the DUI test, unless you are willing to risk your license being suspended.
DO keep your car interior clear of unnecessary objects. It may give the police reason to search the car.
DO ask if you can park your car in a safe place or have a licensed driver take it away, if you are arrested, to avoid towing or impoundment fees.
NOTE: An AB 60 license should be accepted by state and local law enforcement in California, the same as other state-issued IDs.

If you are stopped in your car, DONíT...
DONíT physically resist a search. Say ďI do not consent to a search.Ē
DONíT refuse to sign a ticket. You can be arrested for it.
DONíT search for your license or registration until asked. It may look as if you are trying to hide something.
DONíT disrespect the officer. Although you have a constitutional right to do so, it could lead to your arrest.
DONíT attempt to bribe the police.
DONíT play music loudly when the police walk up to your car.
DONíT have any objects hanging from your rearview mirror. It may give police a reason to pull you over.


https://www.freeadvice.com/news/Gene....htmDisobeying a Police Order
Every state has some version of a law like the one that Payne cited to justify his arrest of Wubbels. Obstructing justice is the common term given to laws that prohibit interfering with the police while they are carrying out their duties.

But what does it mean to obstruct justice? In most states, the duty to obey a police officer is not clearly defined.

It is generally accepted that if a police officer orders someone to break the law, the person to whom the order is given has the right to refuse that order. The Salt Lake City case might fall into that category, because Wubbels would have been violating laws protecting the privacy of patients by releasing the truck driverís blood without his consent in the absence of a court order or warrant.

It is less clear whether individuals can disobey orders that do not require unlawful action, but that a police officer cannot lawfully give. For example, a police officer has lawful authority to tell someone to stop moving if the officer has an objectively reasonable suspicion that the person committed a crime. If the person who is given that order keeps moving in the correct belief that the officer has no authority to give it, has that person committed a crime?...As FreeAdvice has discussed, police officers often order people to stop recording police encounters. Courts have generally held that those orders are unlawful because individuals have a constitutional right to document the actions of public officials in a public place. .....
In the end, doing what a police officer demands is the safest route to follow, but it is also the route that leads to a loss of liberty. The better answer is for states to more clearly define the orders that police are entitled to give and that individuals are required to obey.


So, rolling down your back window is certainly not "a order to break the law". It is perfectly legal for you to roll down your window.

Standing on your rights for such a trivial request is a bad idea. There's a good chance the cops order will be found to be legal, and the cost to you could be very high.

ianal.

Here's a nice, long pdf that discusses this issue at lenght:
https://digitalcommons.law.scu.edu/c...text=lawreview
  #30  
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.
  #31  
Old 06-10-2019, 02:24 PM
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You do not have to roll down your window (tinted or not) if a cop requests it. However, you DO have to hand over your license and registration, which means rolling down the window enough to do so. The officer can also require you to exit the car in order to determine if you were drinking or to ensure his own safety while making the stop. See Pennsylvania v. Mimms.
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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, 02:34 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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Originally Posted by pkbites View Post
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.
  #35  
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.
  #36  
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.
  #37  
Old 06-10-2019, 03:03 PM
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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.
One last question, then -- it sounds like you CAN order people to exit the car, but you CAN'T order people to roll down their windows, since they can just lie and say they don't work. In the case laid out in the OP, a hypothetical officer wanted the windows to be rolled down to confirm that the back seat was empty, for safety reasons. If I, as a driver, tell you that my windows don't work (which may or may not be the truth), and I also say that nobody's in the back seat, do you have any authority to open the rear door? Assuming you have no other reason to suspect someone is in the back seat. I don't see how you could.

Last edited by steronz; 06-10-2019 at 03:04 PM.
  #38  
Old 06-10-2019, 03:06 PM
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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.



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 Iíd want to know about someone in a locked trunk. But unless I have reason to believe someoneís in there, pooping the trunk could be an unlawful search.
You may not "yank" passengers out of the vehicle if they are complying. You may order them to exit and if they do closing the door behind them, then you cannot search.

No disrespect, but this was the exact reason for Justice Stevens' dissent in these cases. These methods are jackbooted thuggery directed toward passengers whom you have no suspicion at all that have committed any crime at all, not even a minor traffic violation, yet you are "yanking" them around for some unknown reason.

Yes, I know stops are dangerous, but you could encounter a dangerous person on the street. Should you be able to "yank" anyone around that you feel like?
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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.
  #40  
Old 06-10-2019, 03:18 PM
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You may not "yank" passengers out of the vehicle if they are complying.
Knock off the nitpickery over terminology. You know what I meant.

And donít get pithy at me because you donít like what we can do. The courts ruled on this, not me.

Remember back to the Byrd case? I sided with Byrd even though he was a shitbag.
  #41  
Old 06-10-2019, 03:23 PM
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Knock off the nitpickery over terminology. You know what I meant.

And donít get pithy at me because you donít like what we can do. The courts ruled on this, not me.

Remember back to the Byrd case? I sided with Byrd even though he was a shitbag.
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.
  #42  
Old 06-10-2019, 03:33 PM
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One last question, then -- it sounds like you CAN order people to exit the car, but you CAN'T order people to roll down their windows, since they can just lie and say they don't work. In the case laid out in the OP, a hypothetical officer wanted the windows to be rolled down to confirm that the back seat was empty, for safety reasons. If I, as a driver, tell you that my windows don't work (which may or may not be the truth), and I also say that nobody's in the back seat, do you have any authority to open the rear door? Assuming you have no other reason to suspect someone is in the back seat. I don't see how you could.
No, I can order people to roll down their windows. If they lie and say they donít work that is another issue. It doesnít affect my lawful authority.

Usually if the windows are tinted in a way that prevents viewing someone is sitting inside, then they are illegal. Then I can order them down or the vehicle can no longer be operated on a public roadway and I will tow the vehicle. Before a vehicle towed we check to make sure nobody is inside.

I am going to see if someone is in that back seat regardless of what scenario you throw at me. And I am going to see legally. Sorry that you donít like it.

In the case of overly tinted windows that in itself is RS for a stop.

A more tricky scenario is a cargo van. No windows other than the front driver/passenger area, and a makeshift wall and door between the driver compartment and the cargo area. Muffled Sounds coming from the cargo area but not exactly like people talking. A radio? An electric motor running? Is there justification to demand a view to the back cargo area? And yes, this did happen.
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Old 06-10-2019, 03:38 PM
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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).
If I say ďJoe got slammed with 5 speeding tickets in a weekĒ would you assume the officers slammed those citations right on his face?

If I were to say ďJoe got so many traffic tickets the state yanked his driver licenseĒ 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.
  #44  
Old 06-10-2019, 03:40 PM
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No, I can order people to roll down their windows. If they lie and say they donít work that is another issue. It doesnít affect my lawful authority.
I don't see how it can't affect your lawful authority. I'm not under any legal obligation to drive around with rear windows that work. Shit, I'm not even under any legal obligation to drive around with rear doors that open. The more I think about it, if you can't see in the back seat and I give you no probably cause to think someone's back there (like you mention about cargo vans), you're not getting a look back there.

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Originally Posted by pkbites View Post
Usually if the windows are tinted in a way that prevents viewing someone is sitting inside, then they are illegal. Then I can order them down or the vehicle can no longer be operated on a public roadway and I will tow the vehicle. Before a vehicle towed we check to make sure nobody is inside.
I'm gonna call nonsense on this. In my state, rear and back windows can be any darkness. It's been that way in every state I've lived in. Maybe your state differs but I don't see how, considering cargo vans and the Chevy HHR Panel Van are legal. You can spray paint the rear windows black in Ohio as long as you have functioning side mirrors.

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Originally Posted by pkbites View Post
I am going to see if someone is in that back seat regardless of what scenario you throw at me. And I am going to see legally. Sorry that you donít like it.

...

A more tricky scenario is a cargo van. No windows other than the front driver/passenger area, and a makeshift wall and door between the driver compartment and the cargo area. Muffled Sounds coming from the cargo area but not exactly like people talking. A radio? An electric motor running? Is there justification to demand a view to the back cargo area? And yes, this did happen.
Your own example undermines your confidence. You can't see in the back of a cargo van legally without probably cause, even though someone may very well be sitting back there.
  #45  
Old 06-10-2019, 03:58 PM
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Your own example undermines your confidence. You can't see in the back of a cargo van legally without probably cause, even though someone may very well be sitting back there.
It was the equivalent to a trunk. But like a trunk if I can articulate someone is in there I have cause to verify. The courts have continually ruled in favor of officer safety.

I have been on the job since Ď82. So long, in fact, I retired after 25 years, took my pension, and started a second career with another agency. This includes having held a rank in my first career. I am rather certain if I didnít know WTH I was doing Iíd not of made it this long. In the case of the OP I am going to see if someone is in that back seat whether he unrolls those windows or not. And no court is going to rule I didnít have the authority to do so. Accounting for all occupants of a seized vehicle is not a search.

Sorry you donít like it.
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Old 06-10-2019, 04:05 PM
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Sorry you don’t like it.
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?

Last edited by steronz; 06-10-2019 at 04:06 PM.
  #47  
Old 06-10-2019, 04:19 PM
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One last question, then -- it sounds like you CAN order people to exit the car, but you CAN'T order people to roll down their windows, since they can just lie and say they don't work. ...
Since it is not a illegal order, yes, they can.
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Old 06-10-2019, 04:25 PM
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Since it is not a illegal order, yes, they can.
Well fine, I guess they can make the order, but nobody has to comply. That's a distinction without a difference. It's like asking passengers to produce a state ID -- that's a lawful request, but since nobody is required to have a state ID on them as a passenger, they can just say no.
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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 06-10-2019, 04:48 PM
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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:



After pointing to the concern in Mimms and Wilson about the dangers of traffic stops and the minimal burdens, etc., the court concluded:



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.
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.

Quote:
Originally Posted by pkbites View Post
Knock off the nitpickery over terminology. You know what I meant.

And donít get pithy at me because you donít like what we can do. The courts ruled on this, not me.

Remember back to the Byrd case? I sided with Byrd even though he was a shitbag.
Is this a NJ case where you get this authority? I find it outrageous. Again, nothing personal. I remember the Byrd case when we talked about it, and I know a lot of police officers and even have one in the family. He talks this way sometimes and it is disturbing.

Can you do this automatically or does it require some sort of suspicion? How dark do the windows have to be according to your case law?

It seems odd in the extreme, almost like having your curtains drawn is suspicion that you are up to something illegal in your house. People want privacy for many reasons, illegal activity being only one.

Also, I am only arguing to the extent that you are saying (if you are) that you feel or the cases hold that you can do these things absent any sort of reasonable articulable suspicion that something is going on in that backseat.
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