Can you tell an officer you don't believe his probable cause?

Cervaise · February 27, 2008, 5:51pm

“Because you had a fight with your woman?”

mhendo · February 27, 2008, 9:22pm

Here’s the story:

Interestingly, the LA Times notes that the search revealed a gun and some cocaine, whereas the NY Times mentions only the drugs, not the firearm.

Anyway, i agree that this sort of search should require a warrant, especially given that the guy is already in custody and the police can secure his vehicle. The only difference between a warrant and no warrant, in this case, is that the cops actually have to do some work rather than just opening the car because they feel like it.

Gfactor · February 27, 2008, 9:31pm

Of course, if they inventory the car as part of the impound process, they don’t need a warrant. http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=volpage&court=us&vol=479&page=375

Dinsdale · February 27, 2008, 9:53pm

Of course. But why would they necessarily impound a legally parked vehicle? IIRC, in this case the state was making some argument about LEO safety or something.

Seems to me there’d be no “confusion” if the cops simply adopted a bright line not to search the damned car absent a search, but I fear that is not the way this is going…

Loach · February 27, 2008, 9:57pm

A.R. Cane:

Not a traffic stop, but several years ago two uniformed officers came to my home about a car that my wife (at the time) had given to a girlfriend, w/o notifying the state of the change in ownership. I invited them in and offered them coffee. I told them all I knew about the car. On of the officers then went into this spiel about have been through drug task force
and then informed me that he believed he smelled marijuana and ask me if I was growing, or using it. I was furious and told them that the invitation to enter my home had expired, asking them to leave. They did so, w/ a few parting words. So I’m not sure an officer smelling pot is sufficient to establish probable cause for a search w/o some substantiating evidence. When my wife talked to them later, their first question was about smelling pot in my house. These guys seemed pretty convinced, so I’m pretty sure they would have searched if they believed they could have.

Just to clarify something, this situation is different than the OP. The law treats vehicles different. Basically if they were in your house and found probable cause they would have to get a warrant to search. If there is probable cause during a motor vehicle stop then they can search without a warrant. There is more to it than that and it is a bit different from state to state. For instance, in New Jersey even with probable cause you can’t go into the trunk without a warrant. In other states you can.

Sorry that is wrong. The courts, including SCOTUS has upheld that there is a need for holding people for investigation. There has never been a definitive time limit for when an investigation becomes an arrest. For the courts it has been mostly a “we know it when we see it.” Generally under 45 minutes is considered reasonable for an investigation. I’m sure Gfactor will find the cites in about 30 seconds. If you think about it, it makes sense.

Gfactor · February 27, 2008, 10:23pm

I agree completely. And they don’t need a warrant to search a vehicle. If they had probable cause, they could search the car. I haven’t read the article yet, but they’re either trying to make it a wingspan search incident to arrest or a reasonable suspicion search under Terry.

Gfactor · February 27, 2008, 10:43pm

and I’m wrong:

So actually, Gant it trying to limit *Belton * to situations where the suspect is arrested while in his vehicle. See, e.g., http://www.supreme.state.az.us/argument/07Summaries/March%2020%20CR060385PR.pdf

The state supreme court opinion: http://www.supreme.state.az.us/opin/pdf2007/CR060385PR.pdf

The petition for cert: http://www.scotusblog.com/movabletype/archives/07-542_pet.pdf

The opposition: http://www.scotusblog.com/movabletype/archives/07-542_bio.pdf

Some amicus briefs are here: Petitions to Watch | Conference of 2.22.08 - SCOTUSblog

Gfactor · February 27, 2008, 11:32pm

From the AZ Sup. Ct. Opinion:

Because Thornton’s holding was carefully limited to the question presented, the Supreme Court did not address whether, even if an arrestee is a recent occupant, a search of the arrestee’s vehicle is nonetheless unlawful if concerns for officer safety or destruction of evidence – the Chimel justifications – no longer exist at the time of the search. See id. at 622 n.2, 624 n.4.

3 Gant concedes that he was a recent occupant of his car at the time he was arrested, a concession borne out by the facts: Gant was arrested immediately after alighting from his car and within eight to twelve feet of it. See Thornton, 541 U.S. at 622; Dean, 206 Ariz. at 166, ¶ 30, 76 P.3d at 437.

We are aware that most other courts presented with similar factual situations have found Belton and Thornton dispositive of the question whether a search like the one atissue was incident to arrest. E.g., United States v. Mapp, 476 F.3d 1012, 1014-15, 1019 (D.C. Cir.) (upholding search of arrestee’s car conducted after he had been handcuffed and placed in patrol car), cert. denied, 75 U.S.L.W. 3695 (Jun. 25, 2007); United States v. Hrasky, 453 F.3d 1099, 1100, 1103 (8th Cir. 2006) (same), cert. denied, 127 S. Ct. 2098 (2007); United States v. Osife, 398 F.3d 1143, 1144, 1146 (9th Cir. 2005) (same); accord State v. Waller, 918 So. 2d 363, 364, 366-68 (Fla. Dist. Ct. App. 2005) (upholding search of arrestee’s truck conducted after he was handcuffed and “secured at the back of the truck”); Rainey v. Commonwealth, 197 S.W.3d 89, 91, 95 (Ky. 2006) (upholding search of arrestee’s car conducted after he was handcuffed and “so far from his vehicle that it was unlikely he could have accessed it”), cert. denied, 127 S. Ct. 1005 (2007); State v. Scott, 200 S.W.3d 41, 43-44 (Mo. Ct. App. 2006) (upholding search of arrestee’s car conducted after he had been handcuffed and placed in patrol car); see also Thornton, 541 U.S. at 628 (Scalia, J., concurring in the judgment, citing cases upholding searches conducted after arrestee had been handcuffed and secured in patrol car). We do not, however, read Belton or Thornton as abandoning the Chimel justifications for the search incident to arrest exception. See Thornton, 541 U.S. at 621 (“In all relevant aspects, the arrest of a suspect who is next to a vehicle presents identical concerns regarding officer safety and the destruction of evidence as the arrest of one who is inside the vehicle.”); Belton, 453 U.S. at 460 n.3 (“Our holding today does no more than determine the meaning of Chimel’s principles in this particular and problematic context. It in no way alters the fundamental principles established in the Chimel case regarding the basic scope of searches incident to lawful custodial arrests.”). Because neither Belton nor Thornton addresses the precise question presented here, we must, if we are to maintain our constitutional moorings, rely on Chimel’s rationales in reaching our holding.4

4 Other courts have followed this approach as well. See Ferrell v. State, 649 So. 2d 831, 833 (Miss. 1995) (holding that search of arrestee’s car conducted after he had been handcuffed and placed in patrol car did not fall within search incident to arrest exception because the rationales underlying the exception were absent); State v. Greenwald, 858 P.2d 36, 37 (Nev. 1993) (same, citing Chimel).

This puts the case in context, IMO. Most courts have disagreed with the Arizona Supreme Court’s approach, which is based on what a few cases didn’t say. Not a crazy argument, but the state’s position isn’t new, and it’s been accepted by other courts.

Lemur866 · February 28, 2008, 12:19am

Interesting. But surely, if you ask “Am I free to go?” then the cop either has to tell you “yes” or “no”. If he says yes, then you can get back in your car and drive away. If he tells you “no” then you can’t. But a cop can’t just order you to stay put for no good reason can he? And anyway, from the detainee’s point of view, what’s the difference between being detained by the cops and being arrested?

Loach · February 28, 2008, 12:40am

Nope he can’t tell you to stay put for no good reason. But there is no law saying you have to have that reason explained to you. Basically there has to be a reasonable suspicion for him to investigate. For instance if there was a report of an armed robbery and someone fitting the description is in the area they can be held until there is an investigation to find out if they are involved. It wouldn’t make sense if there was a suspicion that needed to be investigated but the suspect was allowed to walk away because he said the magic word. Image that press conference. “Officers briefly detained someone fitting the description of the murder suspect but had to let him go because he said he wanted to go home. No further leads at this time.” As for your last question the difference is time. The courts have ruled that it has to be a reasonable amount of time. They have not been completely specific about how much time is reasonable.

Gfactor · February 28, 2008, 12:47am

http://www.ca8.uscourts.gov/opndir/99/06/982770P.pdf

http://www.hsmv.state.fl.us/CASES/Simmons.html

and don’t you wish you could see Fourth Amendment. Determining the Reasonable Length of a "Terry" Stop on JSTOR

Loach · February 28, 2008, 1:00am

Took you longer than 30 seconds.

Gfactor · February 28, 2008, 1:01am

I stopped for pie.

Lemur866 · February 28, 2008, 3:17am

Sure, I didn’t mean to suggest that the cops are obligated to explain why you are being detained before they are allowed to detain you. Arguing with the cops over whether they have a good reason to detain you is fruitless. And if he does state a reason, just because you think an officer’s stated reason for detaining you is bullshit doesn’t give you the right to walk away.

Zabali_Clawbane · February 28, 2008, 3:21am

Am I right in thinking though, that if the person being targeted in such a way kept records they could make a case for police harassment? Especially if it is the same officer using the same reason over and over?

mhendo · February 28, 2008, 6:13am

I can!

It’s a very interesting piece, in which the author concludes that, by using a diligence test that focuses on the needs of law enforcement rather than an intrusiveness-brevity test that focuses on the detainee’s viewpoint, the Supreme Court in US v. Sharpe did not properly represent the intentions of the Terry v. Ohio decision.

Terry’s main concern was to limit the intrusion on the detainee, while also providing for the safety and security of law enforcement, and the intention, according to the author, was that the intrusiveness of Terry stops be limited, and that they be evaluated from the perspective of the person being detained.

The Sharpe decision reflects a greater willingness on the part of the court to evaluate the duration of such stops from the perspective of the needs and procedures of law enforcement, rather than exclusively from the fourth amendment rights of the detainee.

From the article:

Although the diligence test corresponds to the Supreme
Court’s rejection of a rigid time limitation, the Sharpe majority
presented no other justification for advocating this standard. Moreover,
by adopting the diligence standard the majority interpreted
the second prong of the Terry test to include balancing the government’s
interest in law enforcement against an individual’s fourth
amendment rights.

<snip>

Underlying this interpretation of the second prong of the Terry
test is the implicit assumption that the scope of an individual’s
fourth amendment rights may vary and that courts should define the
scope of these rights by focusing on law enforcement needs. Justice
Marshall pointed out that under the diligence standard an individual’s
constitutional rights are dependent on the interests of law en-
forcement . Courts will consider the validity of a Terry stop by
examining the actions of police rather than the actual intrusion on
the detainee. Thus, as long as police are diligently pursuing an
investigation, the length of a stop can vary significantly despite the
fact that large increases in the length of the detention substantially
increase the infringement on the suspect’s fourth amendment
rights.

This interpretation of the Terry test and its underlying assumption
are contrary to the rationale developed in the Terry line of cases.

pp. 1021-1022

While concurring in the Sharpe decision, Justice Marshall preferred that Terry stops be evaluated using an intrusiveness-brevity test that focuses on the level of intrusiveness to the detainee. Marshall:

The author of the paper concludes:

I think that’s a fair summary of the paper’s key point, although i’m not a legal scholar, so if any of the legal types here see fit to contradict my reading, i’ll eat the humble pie.

ETA:

Note, also, that the paper was written in 1985, and there have been other decisions since then pertaining to this issue.

Dead_Cat · February 28, 2008, 1:13pm

Interesting point. I guess “I’d rather you told me, please” would be safer, and not snarky. Basically, it depends a lot on the cop’s attitude. If they really want to ticket you, they’ll probably find a way. If they’re prepared to offer some discretion, you can certainly help yourself out.

Fair point, but for maximum effect surely you’d amend it too: “because you had a fight with your boyfriend?” :).

Quartz · February 28, 2008, 1:29pm

That’s positively brilliant phrasing.

Gfactor · February 28, 2008, 3:05pm

You got it right. *Sharpe * is still pretty much the controlling case on when an investigative stop becomes a *de facto * arrest. And while Justice Marshall argued for a different standard, it wasn’t adopted. *Sharpe * held:

In assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant. See Michigan v. Summers, supra, at 701, n. 14 (quoting 3 W. LaFave, Search and Seizure 9.2, p. 40 (1978)); see also Place, 462 U.S., at 709 ; Royer, 460 U.S., at 500 . A court making this assessment should take care to consider whether the police are acting in a swiftly developing situation, and in such cases the court should not indulge in unrealistic second-guessing. See generally post, at 712-716 (BRENNAN, J., dissenting). A creative judge engaged in post hoc evaluation of police conduct can almost always imagine some alternative means by which the objectives of the police might have been accomplished. But “[t]he fact that the protection of the public might, in the abstract, have been accomplished by `less intrusive’ means does not, by itself, render the search unreasonable.” Cady v. Dombrowski, 413 U.S. 433, 447 (1973); see also United States v. Martinez-Fuerte, 428 U.S. 543, 557 , n. 12 (1976). The question is not simply whether some other alternative was available, but whether the police acted unreasonably in failing to recognize or to pursue it.

Marshall punched some holes in the Court’s reasoning:

In my view, the length of the stop in and of itself may make the stop sufficiently intrusive to be unjustifiable in the absence of probable cause to arrest. 2 Terry “stops” are justified, in part, because they are stops, rather than prolonged seizures. “[A] stopping differs from an arrest not in the incompleteness of the seizure but in the brevity of it.” 1 W. LaFave & J. Israel, Criminal Procedure 3.8, p. 297 (1984).

Consistent with the rationales that make Terry stops legitimate, we have recognized several times that the requirement that Terry stops be brief imposes an independent and per se limitation on the extent to which officials may seize an individual on less than probable cause. The Court explicitly so held in Place, where we invalidated a search that was the product of a lengthy detention; as the Court said: “The length of the detention . . . alone precludes the conclusion that the seizure was reasonable in the absence of probable cause. . . . [T]he 90-minute detention . . . is sufficient to render the seizure unreasonable . . . .” 3 462 U.S., at 709 -710. See also United States v. Hensley, 469 U.S. 221, 235 (1985) (“[A] detention might well be so lengthy or intrusive as to exceed the permissible limits of a Terry stop”); Florida v. Royer, 460 U.S. 491, 500 (1983) (“[A]n investigative detention must be temporary . . .”); id., at 510-511 (BRENNAN, J., concurring in result) (“[A]ny suggestion that the Terry reasonable-suspicion standard justifies anything but the briefest of detentions . . . finds no support in the Terry line of cases”); Summers, supra, at 705, n. 21 [470 U.S. 675, 693] (questioning legality of “prolonged” detention). A Terry stop valid in its inception may become unduly intrusive on personal liberty and privacy simply by lasting too long. That remains true even if valid law enforcement objectives account for the length of the seizure.

The requirement that Terry stops be brief no matter what the needs of law enforcement in the particular case is buttressed by several sound pragmatic considerations. First, if the police know they must structure their Terry encounters so as to confirm or dispel the officer’s reasonable suspicion in a brief time, police practices will adapt to minimize the intrusions worked by these encounters. Cf. United States v. Place, supra (to assure brevity of Terry airport stops, narcotic detection dogs must, under some circumstances, be kept in same airport to which suspect is arriving). Firm adherence to the requirement that stops be brief forces law enforcement officials to take into account from the start the serious and constitutionally protected liberty and privacy interests implicated in Terry stops, and to alter official conduct accordingly. 4

Second, a per se ban on stops that are not brief yields the sort of objective standards mandated by our Fourth Amendment precedents, standards that would avoid placing courts in the awkward position of second-guessing police as to what constitutes reasonable police practice. 5 We have recognized that the methods employed in a Terry stop “should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time.” Florida v. [470 U.S. 675, 694] Royer, supra, at 500. 6 Yet in the absence of a per se requirement that stops be brief, defining what means are “least intrusive” is a virtually unmanageable and unbounded task. Whether the police have acted with due diligence is a function not just of how quickly they completed their investigation, but of an almost limitless set of alternative ways in which the investigation might have been completed. For example, in this case the Court posits that the officers acted with due diligence, but they might have acted with more diligence had Cooke summoned two rather than one highway patrolman to assist him, or had Cooke, who had the requisite “training and experience,” stopped the pickup truck - the vehicle thought to be carrying the marihuana. See generally post, at 712-716 (BRENNAN, J., dissenting). And if due diligence takes as fixed the amount of resources a community is willing to devote to law enforcement, officials in one community may act with due diligence in holding an individual at an airport for 35 minutes while waiting for the sole narcotics detection dog they possess, while officials who have several dogs readily available may be dilatory in prolonging an airport stop to even 10 minutes.

Constitutional rights should not vary in this manner. Yet in the absence of a brevity standard that is independent of [470 U.S. 675, 695] the actions or needs of the police, that variance is one of two inescapable results. The other is that the Court will have to take seriously its requirement that the police act with due diligence, which will require the Court to inject itself into such issues as whether this or that alternative investigative method ought to have been employed. 7 Cf. United States v. Martinez-Fuerte, 428 U.S. 543, 565 (1976) (One purpose of the warrant requirement “is to prevent hindsight from coloring the evaluation of the reasonableness of a search or seizure”). The better and judicially more manageable rule would be a per se requirement that Terry stops be brief, for that rule would avoid the Court’s measuring police conduct according to a virtually standardless yardstick.

Finally, dissolving the brevity requirement into the general standard that the seizure simply be reasonable will “inevitably produce friction and resentment [among the police], for there are bound to be inconsistent and confusing decisions.” Schwartz, Stop and Frisk, 58 J. Crim. L. C. & P. S. 433, 449 (1967). The police themselves may have done nothing unreasonable in holding a motorist for one hour while waiting for a registration computer to come back on line, but surely such a prolonged detention would be unlawful. Indeed, in my view, as soon as a patrolman called in and learned that the computer was down, the suspect would have to be released. That is so not because waiting for information in this circumstance is unreasonable, but simply because the stop must be brief if it is to be constitutional on less than probable cause. A “balancing” test suggests that a stop is invalid only if officials have crossed over some line they [470 U.S. 675, 696] should have avoided; the finding that such a “balance” has been struck improperly casts a certain moral opprobrium on official conduct. A brevity requirement makes clear that the Constitution imposes certain limitations on police powers no matter how reasonably those powers have been exercised. “[H]air-splitting distinctions that currently plague our Fourth Amendment jurisprudence” serve nobody’s interest, New York v. Quarles, 467 U.S. 649, 664 (1984) (O’CONNOR, J., concurring in part and dissenting in part), but measuring the legitimacy of a Terry stop by the reasonableness and diligence of the official’s actions, rather than by the intrusiveness of the stop, would proliferate such distinctions. Maintaining the clarity of Terry’s brevity requirement will instead breed respect for the law among both police and citizens.

For these reasons, fidelity to the rationales that justify Terry stops requires that the intrusiveness of the stop be measured independently of law enforcement needs. A stop must first be found not unduly intrusive, particularly in its length, before it is proper to consider whether law enforcement aims warrant limited investigation.

II

We have had little occasion to specify the length to which a stop can be extended before it can no longer be justified on less than probable cause. But see United States v. Place, 462 U.S. 696 (1983) (90-minute seizure too long). In Terry and Adams v. Williams, 407 U.S. 143, 146 (1972), we described the stop simply as “brief.” In United States v. Brignoni-Ponce, 422 U.S. 873, 880 (1975), we upheld a “modest” stop that “usually consumed no more than a minute.” Dunaway v. New York, 422 U.S. 200 (1979), United States v. Martinez-Fuerte, supra, at 558, and United States v. Hensley, 469 U.S. 221 (1985), drew upon Terry to characterize permissible stops as “brief” ones; Florida v. Royer, 460 U.S. 491 (1983), described a legitimate Terry stop as [470 U.S. 675, 697] “temporary.” Those stops upheld in these cases all lasted no more than a few minutes before probable cause was established. 8

The Court has “decline[d] to adopt any outside time limitation for a permissible Terry stop.” Place, supra, at 709. While a Terry stop must be brief no matter what the needs of the authorities, I agree that Terry’s brevity requirement is not to be judged by a stopwatch but rather by the facts of particular stops. At the same time, the time it takes to “briefly stop [the] person, ask questions, or check identification,” United States v. Hensley, supra, at 229, and, if warranted, to conduct a brief pat-down for weapons, see Terry, is typically just a few minutes. In my view, anything beyond this short period is presumptively a de facto arrest. That presumption can be overcome by showing that a lengthier detention was not unduly intrusive for some reason; as in this case, for example, the suspects, rather than the police, may have prolonged the stop. 9 It cannot, however, be overcome simply by showing that police needs required a more intrusive stop. For that reason, I regard the American Law Institute’s suggested maximum of 20 minutes 10 as too long; “any suggestion that the Terry reasonable-suspicion standard justifies anything but the briefest of detentions or the most limited of searches finds no support in the Terry line of cases.” Royer, supra, at 510-511 (BRENNAN, J., concurring in result).

*Id. *

But Marshall’s view was not adopted by the Court.

dmatsch · February 28, 2008, 6:54pm

(IANAL)

No, it would be more like:
(PA – Prosecuting attorney)
(OB – Officer Bob)
(DA – Defese attorney)
(U – you)
PA: Officer Bob, why did you search Mr. X’s car?
OB: In my professional experience, I smelled what I thought was MJ in the car. I had PC, so I searched the vehicle.
DA: I object. OB doesn’t know what MJ smells like.
PA: OB, have you been involved in an arrest on MJ charges?
OB: Yes
JUDGE: overruled.
YOU:

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