“ENOUGH means probable cause, period, no PC, no legal hold.”
Not so. I may not I have enough to arrest you and you may still not be free to leave. Let’s say I get a report of an armed robbery and the suspect is reported to look very similar to you. I encounter you in the immediate area minutes later. I can detain you without arresting you. This is an investigative detention. This detention has to be reasonable in duration and is circumstance dependent. I don’t have probable cause but I do have a reasonable suspicion. You may exercise your right to remain silent but that doesn’t mean I’m letting you go. As a matter of fact, that’s going to make me more suspicious. But sooner or later I will have PC (you’re under arrest) or not (you’re free to go).
Investigative detentions happen all the time. No PC is necessary.
That’s why the key question is “Am I free to go?” and not “Am I under arrest?”. Once you are detained, there must be specific and articulable facts to support the detention. If there are not then the detention may be in violation of the 4th amendment. If the answer to the first question is no, then you communicate that you will not be answering any questions, perhaps by giving them a tear away business card that say so.
Always have your audio recording device ready to document the encounter.
Cause:
A driver is stopped for drunk driving and refuses to take the sobriety test requested by the law enforcement agency. The officer can take your driver license on the spot and the suspension begins immediately.
There is nothing in that statute about being in the clear if you are not actually impaired. Refuse the test, and the Officer can suspend your license immediately. remember, driving is a privilege, not a legal right, and your license is the property of the State.
The law MUST be read in context to the exact meaning of the author, and an arrest in needed 1st;
Simply refusing when asked is not grounds to take a license.
Any person who operates a vehicle, streetcar, or trackless trolley upon a highway or any public or private property used by the public for vehicular travel or parking within this state or who is in physical control of a vehicle, streetcar, or trackless trolley shall be deemed to have given consent to a chemical test or tests of the person’s whole blood, blood serum or plasma, breath, or urine to determine the alcohol, drug of abuse, controlled substance, metabolite of a controlled substance, or combination content of the person’s whole blood, blood serum or plasma, breath, or urine if arrested for a violation of division (A) or (B) of section 4511.19 of the Revised Code, section 4511.194 of the Revised Code or a substantially equivalent municipal ordinance, or a municipal OVI ordinance.
I’m wondering if you are in the US? I wouldn’t be surprised if your municipality could suspend your license for such refusal, and you are either unaware, or have forgotten it.
Arizona v. Gant has restricted these type of searches:
If I was defense counsel representing someone whose car was searched because of failure to provide registration, I would argue that such information was readily available to the officer on his computer and would have been verified on such computer anyways making a search unnecessary.
Further if the officer’s argument was that he had PC to believe that the client was driving without valid registration, then he won’t find evidence of this in the car because, by definition, the client wouldn’t have such registration. I think that Gant would cause the search to be tossed.
ETA: Gant dealt with search incident to arrest, so NM. But I would like to know the evidence which would be lost if not for the search for a registration card.
I know about Gant, that restricted a search POST arrest while the detainee was secured. “Search incident to arrest” was the key, Arturo was not about such.
Correct. However the basic test for a search of a car is if there is probable cause that the officer might find evidence of a crime inside the car.
If we take the hypo of the motorist who says that he doesn’t have his registration card, absent more, what evidence of crime is the police officer expecting to find by searching the vehicle?
But Arturo didn’t have a license or registration, therefore the cops can reasonably (read: make up bullshit) believe that they might find a registration card in order to prove his identity.
The hypo was that the driver only did not have a registration card, but presumably showed a valid driver’s license which established his identity.
The Class case that the Arturo court cited should have led them to reach the opposite result, even in its own case. Class noted the limited search for a VIN on the dashboard as opposed to “rooting around in the car.” Searching for a registration, especially when the court says that it could be anywhere in the vehicle, is nothing less than “rooting around in the car” especially when the police can simply run the tags to see if the vehicle is stolen.
Your best bet is to refuse to go to the station unless they arrest you.
In most municipalities, the police will request that you come down the station. I will always refuse and make them arrest me if they want me to come down with BEFORE I have had a chance to talk with an attorney. I’m not going to be loud and aggressive; I’ll just state that they need to place me under arrest if they want me to accompany them to a police station before I spoken with legal counsel.
The majority of the time, the police won’t arrest you in these types of situations as you have just prevented what they wanted to happen from occurring (getting you to the station and then questioning you without counsel being present.) They may continue to ask; but more likely than not, they’ll leave you a card and request that you come to the station with your attorney.
I have always looked at things like this: If they have enough to arrest me, then nothing I can say will prevent it, so I need to speak with a lawyer ASAP. If they don’t have enough to arrest me, then we have nothing to talk about and I’m not going to the station.
Sorry if that makes their investigation “harder” but I have seen enough BS to know that the police are not concerned with protecting my rights. So I’ll give my name and provide some ID. After that, any more questions will require that I first speak with an attorney.
I don’t know where you got this but it’s incorrect. Custody + Interrogation is indeed the test for whether or not Miranda applies. Cops will quite frequently ask you questions in settings other than described above… And they expect to use your answers against you in a court of law.
But I would like to know the evidence which would be lost if not for the search for a registration card.