Ok,I have a question that is tangental to this topic. In some states,doesn’t refusal to allow an officer to search your car potentially result in you losing your liscense? Am I misunderstanding Kansas state law? I’m not sure of the circumstances that would lead to this,if there are any? (Smelling pot,seeing an open drink or weapon???) Does anyone know?
Atwater v. Lago Vista, a recent SCOTUS opinion, held that the Fourth Amendment doesn’t forbid a warrantless arrest for minor criminal offenses, such as a seat belt violation punishable only by a fine. Some states may have laws providing that certain offenses aren’t arrestable; states can provide more protection to their citizens than is necessary under the Constitution if the wish. I don’t know one way or the other if any do this regarding traffic violations.
That’s the reason I brought up the dangers in demanding your rights, on the spot to, a street officer. For one thing, you might come off as being a smart ass.
And for another, there is a small minority who go into law enforcement because they like to push people around. They don’t last on good police forces but they manage to get hired somewhere and can be a real danger if encountered.
As usual with legal questions, the answer varies from state to state. I strongly encourage everyone to be very familiar with their civil rights where they live.
In Washington state, you can withdraw consent at any time and the stop must stop immediately. You can also limit the scope of the search when you give consent (“OK, you can search the passenger compartment, but you can’t look in the trunk”).
Here, I can’t perform a search unless I have a search warrant or one of the exceptions to the search warrant requirement (consent being one of those exceptions).
Can a rent-a-cop legally search you?
Again, this varies from state to state.
First, we don’t need probable cause to make a car stop - we need reasonable suspicion. This is a much lower standard. Probable cause is the standard needed to make an arrest.
If an officer takes you to the station for further questioning, probable cause is required (unless you go voluntarily). This is a seizure, pretty much the equivalent of arrest, and we can’t just do it on a whim.
If they do have probable cause to believe there is something illegal in the car, then they could hold you and your car until they obtain a search warrant. In some states (not mine), once they have probable cause to believe there is something illegal in the car, they can go ahead with the search without obtaining a warrant. If a judge later determines that they really didn’t have probable cause, the evidence will be suppressed.
Whether you can be arrested for a specific traffic violation also varies. Most of the traffic laws here in Washington state are infractions and you cannot be arrested for them. You can only be held long enough for the officer to run your name and complete the citation.
Cite, please. I believe this is incorrect–a traffic stop is not a “stop-and-frisk” of the type approved on “reasonable suspicion” in Terry v. Ohio. If Joe Motorist is not permitted to drive on whenever he feels like it, he is under arrest, and that requires probable cause.
A person may be arrested without ever being taken to the station. Once a person is detained and not authorized to leave, an arrest has been effected.
Ok, so i’ve watched a few law shows…
I quote distinctly remember this concept of “forbidden fruit” evidence, found, but can’t be used in court.
What if you let then search the car, but not the trunk. They search the trunk anyway and find something incriminating. Can that evidence be used against you?
or…
What if you let them search the car, but recind consent when they start moving toward the trunk?
Harmonix: if they search the trunk anyway, the evidence found will not be admissible against you. That’s not quite “forbidden fruit,” and I think the phrase you’re looking for is “fruit of the poisonous tree.”
The idea behind fruit of the poisonous tree is that anything that arises from the initial flawed search is also tainted. For example, in the trunk the police find a bag of coke, an illegal machine gun, and a note saying: “The next coke and gun buy is at 123 Main St at midnight on Tuesday.” Based on that information, they search 123 Main St and find coke and guns.
The coke and gun in the car is inadmissible as an illegal search. The Main Street evidence is inadmissible as the fruit of the poisoned tree, the roots of which were the illegal car search.
- Rick
It would seem that the answer to the OP question is that under certain conditions you can halt a search to which previous permission was given. Based on the various discussion points, though, it seems to me that this is sort of groping around for an indistinct boundry between the limits of police powers in possible exigent circumstances and a citizen’s civil rights.
I don’t think anyone can tell you where that boundry is without an inquiry into the particular circumstances in the situation in question. Such an inquiry is usually the result of a trial and to try to argue it out with a cop on the street seems to me to be just asking for trouble.
I would expect that there would be cases where a person who is perfectly innocent of the offense that the cop suspects might not want a search. For instance, your wife is with you and you notice a strange brassiere under the front seat. Even so, it might be better to tell the cop your problem, sotto voce, and let him search. I don’t think the cop’s intent is to cause you that kind of problem although he might think you are some sort of heel.
Okay, I know the soundness of Phlosphr’s reply has already been called upon, but I was actually wondering about the “rip it apart” part.
Let’s say you agree to the search. Can the officer actually destroy pieces of your vehicle? Say, tear open the dash, cut up the seat, remove engine parts, etc.?
Michigan v. Long, 463 US 1032 (1983) upheld a search of the passenger compartment of an automobile based on less than probable cause and extended Terry to cars in some limited circumstances. 1) The police must reasonably believe that the suspect is a danger and 2) the search is limited to those areas where weapons might be stored.
Is this the case even if the officers first get a warrant to search 123 Main?
I watched an episode of “World’s Wildest Police Videos” today, and one of the segments covered just the question askede by the OP. The cops pulled a guy over for some traffic violation, and they asked him if they could search his vehicle after the ticket had been written because as the officer said they’d had a problem with drug trafficking. The vehicle owner agreed, but when the officers went to search his trunk, he revoked his permission. The officers did, in fact, stop the search and closed the trunk lid. But, they subsequently brought in a drug-sniffing dog which alerted on the trunk, giving them probable cause to then re-open it and continue the search, and they found drugs. It seems to me, then, that the question of whether you can revoke your permission to search your vehicle is moot, as they can always find some other way to continue a search, if they wish to. In any case, you’ve only got something to fear from the law if you are breaking it. Revoking your permission to search seems pointless if you’ve nothing to hide, and only invites suspicion and further hassle. David Simmons’ advice seems best to me.
Yes, because the probable cause to sustain the warrant is tainted by the illegal search. That is, absent the first illegal search, there would be no independent evidence to present to a magistrate that would convince him to issue a search warrant.
I am in awe at the logical gap displayed above.
How does the story demonstrate that “they can always find some other way to continue a search?”
In fact, there are very few ways they can continue a search. They can gain probable cause during the search. They can bring in a drug dog. But if they have to detain you for a long period of time to get the drug dog, the search will be invalid. If the drug dog fails to alert, the search will be invalid.
How in heaven’s name did this story lead you believe that they will ALWAYS have a way? The “ways” for the police to continue a search are quite limited.
- Rick
Here are a few quick cites I was able to find in a few minutes (the bolding is mine). I believe they confirm my contention that a traffic stop is indeed a Terry stop, until some other factor moves it into an arrest.
[ul]
[li]Under the totality of the circumstances test for investigatory stops, an officer may rely on combination of otherwise innocent observations to briefly pull over a suspect. [/li]United States v. Arvizu, 122 S. Ct. 744, 151 L. Ed. 2d 740 (2002).
[li]Terry stops in Washington are limited to crimes, and traffic infractions.[/li]State v. Duncan, ___ Wn.2d ___, 43 P.3d 513 (2002).
[li]A Terry stop of a person or car is justified if the officer can “point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” [/li]Terry, 392 U.S. at 21; State v. White, 97 Wn.2d 92, 105, 640 P.2d 1061 (1982); State v. Kennedy, 107 Wn.2d 1, 6, 726 P.2d 445 (1986).
[/ul]
**
That is often true, but it isn’t automatic. The courts constantly rule on close questions on whether a detention is an arrest. If I effect a Terry stop, the subject is not free to leave and yet is not under arrest, so long as the intrusion, my actions and the duration of the detention are reasonable.
Would “often find a way” be better for you?
In addition, if the ticket had been written the suspect was free to leave, and once he revoked his consent to search he was again free to leave. Revokation of consent, absent something else, is not enough to justify a further search, and I would argue that the police illegally detained him while waiting for the dog to arrive. Watching “World’s Wildest Police Videos” however entertaining, is not a sound basis for forming legal conclusions.
I thought that too, Rhum Runner, but that’s what they did. I didn’t take note of what state this was in, and nor did I claim this was a good example for legal purposes, rather I offered it as a real-life comparison to the situation posed by the OP.