No standing aside is not consent. Again the OP is hard to answer because it actually seems to be an arrest warrant to me not a search warrant.
No you can not trick people into consent. You would be amazed at how many criminals consent even when they know it’s going to get them arrested. Since all of our consents have to be a signed form with all their rights enumerated or on video, tricking or lying would not work out too well in court.
Anything that was found while looking under the old warrant would be admissible. However, in order to then look for evidence of the second crime as well the original warrant would have to be amended.
Police are trained in ways to talk to people. Some are better than others. In fact the training is actually pretty small in comparison to what you learn just by doing it. And no I have never been trained to work around the constitution. I have been taught the limits of my authority and how to work within them.
The driver must be informed of their rights when consenting. It is a more than a yes or no answer. And consent can be withdrawn at any time. So after the officer said that the driver would just have to say no again. And in my state just asking for consent there must be at least an articulable suspicion. No fishing expeditions allowed.
I’m a criminal defense attorney in Texas. There’s no requirement here that the police show somebody a warrant. Of course, laws and policies vary from place to place, but it’s not a constitutional requirement, and it’s not a requirement of state law, at least not in this state.
In general it’s a bad policy to argue with the police about what they can and can’t do. Of course, if they ask permission, you’re free to say no. And if you’re not sure about something, ask. (“Am I free to leave,” is always a good question to ask.) But in general it’s best to be quiet, polite, and unhelpful.
Your question seems to be do the police have to show you a warrant before or at entry. This 9th circuit case deals with the rule 41 of the federal rules of criminal procedure. Of course it deals with a person answering the door or your facts and no break in is necessary. Whether other circuits are similar in case law is unknown without further research. The US SC has never ruled “directly” that a copy must be presented “at entry”. This case deals with dicta and substantial interpretations of SC cases though.
At par. 17:
To comport with Rule 41, the government must serve “a complete copy of the warrant at the outset of the search.” Gantt, 194 F.3d at 990.
Now, state Rules of criminal procedure vary state to state. I have never read one where textually a copy must be presented at point of entry, but the case law, as in the above, may hold true on that. Some I have read say a warrant must be left and others say a warrant need be left only if items were taken, along with an inventory of what was indeed taken.
In Illinois v. Macarthur, US SC 2001, they permitted such as you describe. The police kept the owner from entering for 2-3 hours until a warrant could be obtained. He had MJ in the house and to prevent it from being destroyed, no entry was permitted without the police accompanying him.
He may be lying, but as long as probable cause exists to search, under the so called “automobile exception”, no warrant is required.
On the other hand, consent MUST be freely and voluntarily given, such a lie circumvents that, so if the officer told the truth about no warrant and no PC existed to search under the AE, any evidence found could be suppressed by a Motion.
This is to prevent the meth from mysteriously vanishing, only if the stolen guitars and meth are in the stolen guitar searchable area/warrant vortex. Got it.
lawbuff cites Illinois v. Macarthur where the police held the suspect from re-entering his home while waiting for the second warrant to come through for some pot, which was found in the course of executing the first warrant? Since that pot discovery was made illegally (w/o a warrant), how could a second warrant be issued?
Would the prosecuting logic be, "well, we found some pot, and that’ll be inadmissible; then since we cause to believe there’s more pot (or whatever), we’ll get the second warrant and really get the goods.
Could my query be addressed as a hypothetical, as everyone else’s have? IAcertainlyNAL, and reading the case–even if I knew where to find it–would be useless.
Leo, if contraband was found illegally, and contraband was found again after a warrant was applied for to search again, the Exclusionary Rule may or may not apply, as we see in this case, although it does not deal with as we are discussing. I have read cases on exactly what we are discussing, but would have to research.
Here, although a constitutional violation occured, the SC upheld the admission of evidence, and threw out the ER.
I have heard that in Washington (state), State Patrol carries a blank warrant in their trunk pre-signed by a judge that they just need to fill in the particulars and give to the driver. Assuming this is true, would such a warranted search be legal?
I was actually involved in a situation similar to this. While I was still living at home, my brother and his friends had gotten involved in some shady things and cops came to the door claiming to have a warrant and requesting entry, when I asked to see the warrant, they claimed they didn’t have to show it to me so I refused to let them in, and as I was closing the door, one of the officers forced his way in, and physically assaulted me. I didn’t fight back, knowing better than to hit a cop, but took my dad and two other police officers to get him off of me before they quickly ran him off and refused to produce his name or badge so we could press charges. Of course, it all didn’t matter since my brother and his friends saw the commotion and ran out the back door and were arrest half a block away. Frankly, I’m still pretty peeved about that situation and it happened years ago.
I had another situation where a cop pulled me over for barely speeding (I think he claimed I was doing 37 in a 35), insisted I must have had drugs in the car on nothing other than “I smell drugs”, when I refused a search, he insisted he didn’t need a warrant, made threats, and proceeded to search against my will, and when he found nothing, quickly bolted when I was trying to get his name so I could file charges. It was late at night on Halloween, so I figure he thought pulling over a kid, the chances that I’d have drugs or alcohol and would know my rights were pretty low.
I have had one situation where a cop actually didn’t search me illegally when I refused, though he did pester me for like 30 minutes. Still 1/3 is pretty bad. Either way, they have to produce it when requested.
Absolutely not. First off, no such thing exists. Second, no warrant is necessary to search an automobile IF probable cause exists, this is known as the “Automobile exception” to the warrant requirement.
There is however what is known as an “Anticipatory warrant”. However, this is NOT applicable to a motor vehicle, as stated, the AE applies.
An Anticipatory warrant is say for example, there is probable cauase to believe a drug shipment is being delivered to Joe’s house but an exact date is not known, but very soon. When info is received it has arrived, the police can execute the warrant instead of applying for one at that time and possibly having the evidence gone by then.
There was a case some years ago, Kaup v. Texas, where the detectives had what they refered to as a “Pocket warrant”, meaning when they wanted to question a person, this warrant gave them legal authority to take them in. This was not permissable.
The way the story was told to me was it was for cases where no probably cause exists but the cop wants to search the car like looking for drugs in the trunk. I always thought it was an urban legend.
If a officer wanted to get around this, what’s to stop them from saying they found the meth in the closet? Would a judge really believe me if I said that I always keep my meth in my briefcase and never in my closet?
If the police want to lie, you’re screwed anyway.
If the police get caught lying, they’re screwed.
If the authorities ignore lying police, society is screwed.
The car search was not illegal. The threshold for a warrant less search on a vehicle is much lower than a residence. Your “charges” would have gone no where. Some states have a higher threshold than scotus has set most do not.
Depends on the scope of the warrant. There is nothing saying they have to be neat. However if they are looking for something big they can’t look in places where it could not possibly be. Anything they found would be in admissible anyway.
I would think you could ask for identification up front, first thing, and that the police are obliged to satisfactorily identify themselves. After all, you certainly have the right to deny entry to your home to anyone else, for any reason whatsoever.
What I wonder a bit, however, is what constitutes “satisfactory” identification. Is it sufficient that the police be in uniform, with badges visible? Do they need to give you a name? (I would think not.) Are ordinary (non urgent) arrests and searches ever carried out by police in plain clothes? Do police even carry photo ID?
I realize it’s not real likely, but…imagine a situation in which some clever thug fakes up a police uniform and badge, keeps an eye on poor women until he finds they smoke a little crack or work the street, or both. Then he shows up at the door, insists he has probable cause – a neighbor saw you smoking, I smell drugs, I have a warrant but left it in the car, ha ha – and gains entry. If he finds some dope, maybe he pressures the girl into a bj or rape, to keep him quiet. Is she going to call the police about this? Not right away. It could go on for quite a while, particularly if he’s smart enough not to press his luck if the target seems too sure of her rights.
Aside from rely on the prosecutor to really really come down hard on this when it’s eventually discovered, tee hee, is there any realistic way Jane Escort can protect herself against this possibility? That is, be fully confident that the face above the uniform actually belongs to someone authorized by the state to enforce the law?