A good argument in the context of Factual Questions? I wonder.
So factual question - you perform a citizen’s arrest because someone smells like pot (or even burnt pot). What law has the person broken in your presence? Are you willing to bet a kidnapping charge that your “evidence” is proof beyond a reasonable doubt that in fact this particular person has committed a federal crime?
going beyond and searching for further proof is not allowed, any more than I private citizen can accost you at your front door and then “detain” you and proceed to enter and search your house for further proof. So your citizen’s arrest is based solely on the appearance of the person.
(Then the police decide not to proceed with the arrest or don’t show up. Then what?)
As an agent of the state, what a state trooper does is the action of the state. They don’t morph into “private citizen” in the middle of their shift.
But let’s get back to the question that started this - what is probable cause to search a vehicle? For open alcohol? For evidence pot was being smoked? Is it simple evidence of impairment? Multiple signs of impairment? (Look of driver, weaving in traffic, etc.) Or does there need to be further reasonable evidence that proof is at hand?
Yes.
More writing because the page won’t let me give a correct 3 word answer.
For a vehicle exception to the warrant requirement for a search there needs to be probable cause of a crime for a search. In most states where marijuana is illegal smell can constitute probable cause. In my state it no longer is. Alcohol is not a prohibited substance. Open container is not a crime, it’s a simple traffic violation. Seeing an open container would not give me the ability to search a vehicle. It’s possible there may be differences in law between states.
One exception to the warrant requirement is a search for intoxicants (don’t get confused). After probable cause for an arrest is found, after the arrest is made and before the vehicle is towed a search of the passenger compartment can be made for evidence of intoxicants. Seeing a (legal) intoxicant in the open does not constitute PC for a search of the rest of the vehicle.
Thank you.
IANAL - Regarding trickery and deception by police during an interrogation - The current NJ case law (State of NJ v Patton) involves an interrogation of a murder suspect. The investigators made a tape of a staged interview. A detective was portrayed as an eyewitness who says he saw the accused shoot the victim… After hearing the taped interview, the suspect confessed rather quickly.
The ruling references a West Virginia Supreme Court case in which the WV court opined:
"We definitely draw a demarcating line between police deception generally, which does not render a confession involuntary per se, and the manufacturing of false documents by the police which “has no place in our criminal justice system.”
In the NJ case, the court said, " We hold that law enforcement and the public would best be served by a “bright-line” rule precluding the use of police -fabricated evidence that later finds its way into the trial." Things like formal-looking lab results or bogus polygraph reports. The lies need to pertain the investigation in a intrinsic way "Your co-accused said… witnesses saw… video shows…etc. and not be extrinsic .
From another case: “Extrinsic falsehoods,” on the other hand, involved misrepresentations beyond the scope of the crime, such as “assurances of divine salvation upon confession … [or] health treatment[;] … promises of more favorable treatment in the event of a confession … or misrepresentations of legal principles[.]” Id. at 73–74 (citations omitted).” These type of lies will make a confession inadmissible.
In reading the whole opinion, it seems that they are saying, consistent with some other cases around the country, that spoken lies might be O.K. but tangible, false evidence is not. I say “seems that they are saying” because they don’t actually say it but, rather, reference other cases that held that. Your state may have different law.
ETA: The confession was tossed.
Mods: Looks like I responded to the wrong thread. There is another specifically dealing with this. Is it possible to move my reply?
Yeah, I keep forgetting the forum. I’m just surprised by how generous you are with this. So you are saying that if I am driving up the Turnpike, me and three other guys with empty beer cans all over the car, you say it is just a traffic infraction, no search can be had, have a nice day gentlemen? I think that is not how it would work, but if you say so then this is FQ and I’ll just shake my head and stop violating the thread rules.
That’s exactly how it would work. It would get me to talk more to the driver. It would get me to investigate further if they were drinking and driving. It would in no way allow me to search the interior of the vehicle. Seeing a traffic infraction in no way gets me probable cause to search a vehicle. There is a warrantless exception for vehicles if there is probable cause of a crime. Open container is not a crime. It’s very simple. Warrants are required by the fourth amendment. Exceptions to that for vehicles are very specific.
Not exactly clear. I presume DUI is a crime but then, the arrest for DUI and potentially abandoned vehicle is what allows the vehicle to be searched? What if a sober passenger elects to take the vehicle home instead?
(I gather some states, the vehicle is automatically impounded when the driver is arrested? So point is moot, this cannot happen…)
While he is currently on duty? He’s going to decide to not be on duty for a few hours while citizen’s arresting someone? Will he still pretend to be an on duty cop when effecting the arrest? Will he let his arrestee know he’s not a cop right now and has no official authority to order anyone to do anything?
I am compelled to point out that a NJ ADA told me point blank that legalized weed meant no more car searches based on the smell of weed. Exactly what @Loach is saying.
So you agree that WV can order their state police to not enforce federal gun laws? I agree with the sentiment, but I think that is wrong as a matter of law.
I’m pretty certain that @Loach isn’t talking about a search being allowed because the vehicle will potentially be abandoned and impounded because an inventory search can be conducted on any impounded vehicle even if no crime is involved ( for example, if a vehicle is towed an impounded due to too many unpaid parking tickets ). Loach seems to be talking about something different - a search of the vehicle for evidence of the DUI itself, as is allowed by this Supreme Court decision
Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.
I certainly wouldn’t expect a WV cop to arrest someone for possession of a firearm that is legal in WV.
It’s a bit different than barring LEOs from participating in a search under a legally obtained federal warrant.
Why would it be wrong as a matter of law? I mean, sure, the fact that some states have decriminalized/legalized medical and/or recreational marijuana under state law doesn’t mean it’s legal under federal law and state authorities can’t interfere with an arrest and prosecution by federal authorities. And the same would go for guns.
But if there is some principal or law that requires every three-officer police department to enforce Title 18 of the US code (including the provisions prohibiting the importation of various plants and animals) , I’d like to see it. I suspect that most of those provisions are not even enforced by all federal agencies - I suppose in some circumstances the postal police might enforce those importation provisions but I’m pretty sure that FBI and IRS agents don’t even know about them.
That’s the Gant case and another one of Scalia’s one offs. But you wouldn’t say that a 30 pack of Bud Light was within “reaching distance” inside the car?
But that’s just what it is. It is not illegal to possess a sawed off shotgun under state law. The new law forbids any state or local law enforcement from helping the feds enforce a federal felony…the possession of a sawed off shotgun. I don’t think that should be allowed…as much as I think that the feds should not be permitted to pass such a law.
I’m not sure what you’re getting at - the arrestee has to be within reaching distance at the time of the search or it has to be reasonable to believe the vehicle contains evidence of the offense the person was arrested for. The whole case is about searching the vehicle incident to the occupant’s arrest - which means there had to be probable cause for the arrest before the search was conducted. If you didn’t have probable cause to arrest someone for the DUI , you can’t search the car.
We have what is called John’s Law which came from someone who was killed by a drunk driver after they were released from an arrest. The car is automatically impounded and can’t be released for at least 12 hours and someone has to sign for the arrestee and agree to not let them drive.
From a liberal state side we are not legally allowed to help ICE enforce immigration laws. We don’t interfere but we can’t help. Guess what? It’s state law. If I break it at a minimum I’ll be out of a job. When I was hired I swore an oath to enforce the laws of the state of New Jersey and uphold the constitution. There was nothing about enforcing US Code.
In general yes but there is a lot of case law about search incident to arrest. I’ll cite the specific NJ case that covers search for intoxicants after an arrest for DWI. It’s in lawyer speak so it may put you into a coma.
Since we are not required to make legal arguments based on case law (except on message boards) we don’t have to dive deep into the legalese. The Attorney General puts out guidelines that we must follow based on statute and updated by changes in case law. By statute the AG is the highest law enforcement official in the state and his directives must be followed by all state law enforcement. I know that’s not the case in all states.