fourth amendment

Factual Questions
41

The problem is that you, who presumably lack legal training, are drawing some conclusions from your experiences that aren’t quite accurate.

If they proceeded to pat everyone down, then either:

[ul]
[li]They had probable cause to believe a crime had been committed, and that you were one of the criminals; or[/li][li]They had a reasonable, articulable suspicion that a crime had been committed AND could point to specific, articulable facts that gave them reason to worry about their own safety; or[/li][li]Their brief detention and pat-down was illegal.[/li][/ul]

Now, what you told the lawyer may well have been more in-depth and detailed than what you’ve related here. And based on some detail that you’ve omitted in your narrative here, but provided to your lawyer, he may well have seen something in your story that justified the pat-down. You, not knowing the significance of that fact, omitted it here.

Based only on what you’ve said - that you were in the middle of a rather loud, annoying group of drunk people - it may be that the cops had probable cause to believe you were drunk in public, that you were disturbing the peace, or that you were guilty of some other arrestable offense. If this were so, then they could legitimately search you.

But that’s slightly different from your original situation. In your original, you said that if officers see a group of kids acting up in a McDonald’s parking lot or people of suspicious nature lingering around some place, they could, without more, frisk them. That’s not so. In order to frisk them, the officer must be able to identify a specific fact or facts that made him concerned for his own safety. He cannot say, “I was just being cautious,” or “Our policy is to frisk all people we approach,” or “They were of a suspicious nature, and they were lingering around.”

You see the difference?

There’s a forum devoted to posting your opinions about things. This isn’t it. I know you posted what you believed to be factual information, and that’s not wrong. But having now learned (hopefully) that the factual answer is a bit more complex than your personal experience and analysis would have suggested, I hope you see that the factual correction was in order.

Illinois v. Caballes does NOT stand for the proposition that if you refuse a search, the canine unit can be called out. Again you miss a subtle distinction.

Caballes holds that a dog sniff is not a search within the meaning of the Fourth Amendment. Period.

If you refuse a search, the police may use a dog to sniff your car. They may not detain you in order to effect this search. So if the police have to keep you in place to call out the canine unit, they may well have detained you illegally.

So, two scenarios:

1: You refuse a search. The dog is already at the scene, and while the officer is writing you a ticket for improper lane change, the dog and his handler walk around your car. The dog alerts on the truck, and the cops force it open, find bales of weed, and arrest you.

Perfectly legal.

2: You refuse a search. The dog is not at the scene. The officer directs you to wait while the canine unit is aclled to the scene. Well after the the officer is finished writing you a ticket for improper lane change, the dog and his handler arrive, and walk around your car. The dog alerts on the truck, and the cops force it open, find bales of weed, and arrest you.

Excellent candidate for a suppression motion. Once the citation was issued, the cops had no reason to hold you. Your refusal of their request to search doesn’t give them any additional grounds or reason to hold you.

42

sigh

The officer’s thoughts must be objectively reasonable. In other words, it’s not enough for him to merely say, “I thought copperwindow was breaking the law.” He must explain what law he thought was being broken, and what he saw or heard to make him believe you were the one breaking that law. And those conclusions must be reasonable.

So, yes, if an officer thinks you are breaking the law, he has a right to search you.

As long as his thinking is reasonable, and the facts he’s observed would lead to a probable-cause belief, that is.

As GFactor cogently observes, there’s plenty of evidence upon which a conviction could be based without the need for lab tests.

43

What does “reasonable doubt” mean? The word “reasonable” is a bit subjective, wouldn’t you say? Was the US reasonable to assume Iraq had WMD’s? Some say yes, others say no. Does the doubt need to be reasonable to the officer, me, or society?

44

Incidentally, I had this one happen to me, minus the weed part. It was my last year in law school, coincidentally right around the time I decided to grow my hair out a little before I joined the grownup world forever. I got stopped by a couple of police officers for speeding while driving from Houston to DFW, and they asked if they could search my vehicle for narcotics. I politely declined. They advised me that if I did not consent, they would just call for the canine unit, which could take anywhere from 45 minutes to an hour and a half. I explained to them that absent articulable reasonable suspicion they could not legally do that, and they somewhat snidely informed me that they legally could and legally would. :rolleyes:

45

First off, thanks for not being condescending in your response, I appreciate that.

Ok, now, could a police officer seeing a group of kids drinking from containers wrapped in paper bags in public and acting rather rowdy give them probably cause, especially if it’s against the law to drink in public, not to mention drink underage?

This is what happened in my case. Hell, in Ocean City MD, they have police officers on every block of the boardwalk carding people randomly walking by and that’s a fact. Sad, but true.

Now, is that legal or not? Because I would think not, but they’re doing it and their excuse is “we’re just making sure there isn’t any underage public intoxication.”

Also, I wasn’t presuming anything with that dog sniffing link, I was just posting it.

46

From Black’s Law Dictionary, abridged sixth edition:

The reasonableness of the Iraq invasion or belief in WMDs is irrelevant in this instance. “Reasonable doubt” is of necessity a subjective standard. Humans are not machines. Reasonable doubt is a question for the jury in a criminal case.

47

In the case we’re talking about(whether the officer’s “probable cause” was reasonable), wouldn’t it be a question for the judge, not the jury? A question of “probable cause” would relevent only to the admissibility of evidence, correct? Isn’t that up to the judge?

(I realize that the standard of reasonable doubt is most often spoken of in relation to the guilty/not guilty decision, but I don’t think that that’s what we’re discussing here)

48

IMHO a group of teenagers acting rowdy in public and drinking out of paper bags would constitute probable cause for checking whether the teenagers are intoxicated. However, that does not automatically mean that the officer has the power to pat the teenagers down for weapons under Terry. The standard under Terry is what I quoted previously.

Depends on the statutes of the state of Maryland. The Supreme Court ruled a couple of years ago, in Hiibel v. Sixth Judicial District Court of Nevada, that in conjunction with a Terry stop the police may demand identification from a person so stopped if the state has a statute authorizing it. However, the Court’s decision was in regard to a specific Nevada statute and as I understand it does not expand Terry in those jurisdictions where no such stop and identify statute exists. Maryland may have a similar statute or it may have a separate stop and identify statute which may or may not, if tested, pass constitutional muster.

49

That’s fine. Let them insist otherwise. These battles are not won or lost by the side of the road. The cops aren’t nearly so snide when they’re on the witness stand.

(I know YOU know this – but for the benefit of the reader…)

50

Sure, that would give them probable cause. But the information that they were drinking was missing from your first presentation of this set of facts, and you can see how it changes the equation.

I would be very surprised if the police could simply walk up to anyone they please, without the slightest indicia of wrongdoing, and ask for ID.

On the other hand, if they saw someone who was drinking, or appeared intoxicated, and appeared to be under age, that’s probable cause.

51

Yes, the question of whether or not probable cause exists is one for the trial judge.

52

Judge or jury, how is a police officer to know what they would constitute as reasonable?

53

All a police officer has to determine is whether probable cause exists. That’s a much lower standard than reasonable doubt.

Probable cause exists when the facts and circumstances within the arresting officer’s knowledge and of which he has reasonable trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed. Saunders v. Commonwealth, 218 Va. 294, 300, 237 S.E.2d 150, 155 (1977).

54

Well, this leads to another question: If I pour a non-alcoholic beer into a bottle of coors and drink it in public and an officer confiscates it, can he leagaly pour it out rather than sending it to a lab to derermine if there was an alcoholic drink in there or not?

55

First, as to substance, what Gfactor and Bricker said.

So, how this would go down is something like this. You’re standing on a corner drinking a beer out of a paper bag. An officer tells you to pour it out. You refuse, trotting out one of your bluffs (it’s just a soda, I put soda in a beer bottle, I put a non-alcoholic beer in an alcoholic beer bottle, whatever). The officer suspects you’re lying. He/she takes it from you and sniffs it. He/she confiscates it and, probably, writes a citation. You decide to fight the citation. Your lawyer seeks to suppress the search for want of probable cause. The officer explains to a judge why he/she believed you had broken the law. The judge decides whether that was sufficient basis for the search. On the facts stated, I would expect the search to be sustained. Meanwhile, if you’ve gotten “mouthy,” the officer will look for other infractions, e.g., public intoxication or your having lied, and Lord help you if you’ve got a joint in your posession or an illegal weapon. IOW, you have converted what should have been a non-event into a BIG deal. Bad move.

As for your latest question, copperwindow, you must realize that the hypothetical you posit is absurd. No one pours a non-alcoholic beer into a regular beer bottle and parades it around the street. It’s a red herring. I gather you think that, because it could be done, the officer is required to accept your bluff at face value. Nope. As indicated by the Saunders case quoted by Bricker, probable cause works in the world of common sense. No judge is gonna throw out the search because there was a remote possibility the bluff was true. That’s not even reasonable doubt (IMHO), and certainly not enough to defeat probable cause. Sorry, but there are no magic words that keep police officers from being able to do their jobs. Actually, I’m not sorry.

As for your question, TJdude825, I think the answer is simply that it’s less conspicuous. But anyone who thinks the trick isn’t well known is fooling themselves. And if what you mean is that you doubt the estimate (and that’s all it is), tell me how many people you know who drink soda from a paper bag? Frankly, I think the 10% fudge factor I threw in is high.

56

Campion, to take this scenario one step further, suppose that you have been stopped for a “routine traffic violation”. The officer asks you to get in his car (front seat if it matters) while he checks your record, writes you a ticket etc. In the process, he calls for the canine unit. He hands you a ticket but the dog hasn’t shown up yet. Would you recommend that the offender get out of the police car, walk to his car and drive off? I ask this in all seriousness because I’m really curious as to the answer. We had a thread not too long ago about how long it was reasonable for the police to make you wait but my search fu is weak and I can’t remember what the concensus was.

57

You ask the officer if you are free to go? If he says no, ask if you are being arrested or detained, and why.

58

But asking permission to leave isn’t really the same thing as having the right to walk away from the police.

59

You asked for a recommendation. You might be within your rights to simply exit the police car, walk to your own vehicle, and drive away. OTOH, if the officer thinks you are not, you’re going to have some trouble. I wouldn’t recommend the approach you have suggested. If you did it, the officer might or might not try to stop you, and you might or might not be injured if the officer did try to stop you. I’d rather you had an intact body than a great lawsuit.

All you’d have to say is, “Ok, I’ve got my ticket. I can go now, right?” If the officer detains you, at least you’ve established that you are being detained against your will. Whether the detention is justified or not will be a matter for another day. Self-help just isn’t safe when the other guy is armed.

60

Well, I would never even consider hopping out of the car without the policeman’s permission. I was just wondering where the legal world and the real world intersect.