Police Interrogations

[Moriarty]

@md-2000

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…)

In Florida, it varies by department. Some automatically impound, but in some places an officer may tell the arrestee “hey, you’ve been cool with me. Is there somebody who you can call who can come get the car?” If they have somebody who can arrive within about 20 minutes, the backup officer will wait with the car. Alternatively, it’s towed.

(If there’s a passenger, they are permitted to drive, but they usually have to blow into a portable breath test, and the passenger is almost never sober if the driver has been drinking. So they have to get an Uber or have somebody come get them).

Now, whether a friend comes to get the car, or it’s impounded, is important. If the cops impound the car (even if that means that a tow truck takes it away), the cops are permitted to conduct what is called an inventory search. The purpose is not to look for evidence of crime, but to document personal possessions (you don’t want somebody complaining that their Rolex watch that was in the glove compartment went missing). As such (and unlike a criminal investigation that results in a search of the car), there does not need to be any reasonable belief of evidence of crime for the cop to do it. The justification is simply that the car is being impounded.

Of course, if in the course of inventorying any personal possessions in the car, the cops find evidence of crime, they are entitled to use it.

So hopefully your buddy answers the phone when you get pulled over and arrested at 2 am.

@UltraVires

An officer wants to get a murder weapon into a state trial. He used RAS to search the car because he smelled weed, a violation of federal law. You see where I am going?

Going back to this federal weed law thing…

In Florida, an officer might be theoretically permitted to conduct an arrest on your citizen arrest theory - an officer outside his or her territorial jurisdiction is indeed entitled to conduct an arrest under this doctrine, so I can imagine applying it to the “federal jurisdiction”.

BUT…an officer can only make the arrest, since that would be her right as a citizen. The officer cannot conduct an investigation, as that would be acting under color of law, something a citizen cannot do.

So, it would not be a means to enter into a criminal investigation. Basically, as already described, the officer would have to make an arrest, then locate some federal agent to complete the detention - you can’t throw them in the local jail if they didn’t commit a state crime.

[Loach]

@Moriarty

@md-2000

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…)

In Florida, it varies by department. Some automatically impound, but in some places an officer may tell the arrestee “hey, you’ve been cool with me. Is there somebody who you can call who can come get the car?” If they have somebody who can arrive within about 20 minutes, the backup officer will wait with the car. Alternatively, it’s towed.

(If there’s a passenger, they are permitted to drive, but they usually have to blow into a portable breath test, and the passenger is almost never sober if the driver has been drinking. So they have to get an Uber or have somebody come get them).

Now, whether a friend comes to get the car, or it’s impounded, is important. If the cops impound the car (even if that means that a tow truck takes it away), the cops are permitted to conduct what is called an inventory search. The purpose is not to look for evidence of crime, but to document personal possessions (you don’t want somebody complaining that their Rolex watch that was in the glove compartment went missing). As such (and unlike a criminal investigation that results in a search of the car), there does not need to be any reasonable belief of evidence of crime for the cop to do it. The justification is simply that the car is being impounded.

In New Jersey John’s Law was enacted in 2001. Before that it was up to the individual jurisdictions.

[eschrodinger]

Put very simply, states are free to afford citizens within their borders greater protection than required by federal law or constitution, unless that federal authority somehow compels the state to act. Typically nothing compels state police to enforce federal criminal law.

My state has a very active independent state constitutional body of law, which is frequently more protective than federal law. There are lots of things officers cannot do under state law that would be permitted under federal law. Unless federal law actually conflicts – meaning it is not possible to comply with both laws – officers are obligated to follow the state law. And violating the state constitution will typically result in exclusion of any evidence collected.

[UltraVires]

@eschrodinger

Typically nothing compels state police to enforce federal criminal law.

I agree. But under our federal system how can a state stop a person from enforcing a serious federal law?

[UltraVires]

@Moriarty

BUT…an officer can only make the arrest, since that would be her right as a citizen. The officer cannot conduct an investigation, as that would be acting under color of law, something a citizen cannot do.

No search incident to arrest? That’s a common law thing.

[eschrodinger]

It’s a separate sovereign that can pass any law it wants, and carry out any law it passes that doesn’t conflict with its own constitution or federal law. The states have plenary power. The federal government is limited to its enumerated powers.

I’m baffled about why you would think otherwise. That’s exactly how our federal system works.

[Lord_Feldon]

@UltraVires

I agree. But under our federal system how can a state stop a person from enforcing a serious federal law?

That might be relevant if Congress explicitly said that all state police officers have a right and/or duty to enforce a federal law regardless of their employers’ wishes (I have doubts that such a law would be constitutional), or if Congress enacted a general citizen’s arrest law that regulated citizen’s arrests when federal crimes were at play, but AFAIK it has done neither.

[ASL_v2.0]

I’m surprised no one has mentioned Printz v. United States yet (for which we can thank the gun lobby for getting a conservative court to rule precisely that the federal government can’t order state officials to enforce federal law).

Printz v. United States

[Loach]

@UltraVires

@Moriarty

BUT…an officer can only make the arrest, since that would be her right as a citizen. The officer cannot conduct an investigation, as that would be acting under color of law, something a citizen cannot do.

No search incident to arrest? That’s a common law thing.

You think there is a citizen’s search along with citizen’s arrest?

[kayaker]

@UltraVires

under our federal system how can a state stop a person from enforcing a serious federal law?

Which federal laws are “serious” and which are, what, “flippant”?

[UltraVires]

If a citizen makes an arrest. he cannot search the arrestee for weapons?

[UltraVires]

@ASL_v2.0

I’m surprised no one has mentioned Printz v. United States yet (for which we can thank the gun lobby for getting a conservative court to rule precisely that the federal government can’t order state officials to enforce federal law).

I cited it above. The feds may not mandate that a state enforce federal law, but it is silent on whether a state may prohibit a good citizen from enforcing it.

[mjmartin]

Even if it is not prohibited, how would it work as a practical matter? An officer pulls over a driver for speeding, smells pot, and then says, “I am no longer acting in my official capacity, I am just Joe Smith now, and I am doing a citizen’s arrest based on federal law.”? He then calls federal agents and says, “drop what you are doing, I just did a citizen’s arrest on someone who may have some weed.” I have no special knowledge of the DEA or FBI, but I am dubious of their interest to get involved in something like that. Meanwhile, the officer has just opened himself up to civil liabilty, and anything he finds will be thrown out for any state charges (at least in Massachusetts, the state I am most familiar with, cite below). And for his trouble, the officer gets what? Likely fired and definitely sued.

https://www.sankeylaw.com/massachusetts-court-bars-warrantless-vehicle-searches-marijuana-odor/#:~:text=Massachusetts%20Court%20Bars%20Warrantless%20Searches%20of%20Vehicles%20Based%20on%20Marijuana%20Odor&text=In%20the%20first%20decision%2C%20the,coming%20from%20inside%20the%20vehicle.

[ASL_v2.0]

@UltraVires

The feds may not mandate that a state enforce federal law, but it is silent on whether a state may prohibit a good citizen from enforcing it.

A “good citizen” employed by the state. You can’t ignore that. What mechanism of law would you use, then, to keep the state from firing one of its employees for violating the state’s laws or policies? Because it seems to me any effort to protect such employees from state retaliation (ie: the state enforcing its own law or policy on the offending officer) would run into the same problem of trying to compel the actions of state officials in enforcing federal law. Whether that law be a “don’t pack weed into the glove compartment” or “don’t fire your law enforcement officers for taking a break from being a police officer mid-traffic stop and putting on their ‘good citizen’ cap to affect an arrest for a federal agency contrary to your own state policy.”

[kayaker]

@UltraVires

If a citizen makes an arrest. he cannot search the arrestee for weapons

If someone were to detain me for jaywalking until a cop showed up, I’d probably play along. If the person tried to “pat me down” I’d respond as I would to any unprovoked assault.

[Czarcasm]

@UltraVires

If a citizen makes an arrest. he cannot search the arrestee for weapons?

I was under the impression that you have a background in law, so how is it you know so little about how citizen’s arrests work? Here is a link if you wish to learn more about the process:

citizen's arrest

And a broader view from Wiki:

Citizen's arrest

Basically, for the most part you have to actually see the crime being committed, and it only pertains to some crimes, depending on the state.

[Cheesesteak]

@mjmartin

Meanwhile, the officer has just opened himself up to civil liabilty,

Does Officer Citizen’s Arrest get qualified immunity? Can he call for backup if things get squirrely? Does he get to call his Union Rep if he’s sued, or is questioned about the arrest?

Something tells me cops won’t drop all the protections they’re given as agents of the state just to nail someone for having a baggie of weed, or to go on a fishing expedition searching someone’s car.

[Czarcasm]

Here is a list of Citizen’s Arrest laws by state:
https://solutions-institute.org/tools/citizens-arrest-laws-by-state/

[mjmartin]

@Cheesesteak

Something tells me cops won’t drop all the protections they’re given as agents of the state just to nail someone for having a baggie of weed, or to go on a fishing expedition searching someone’s car.

Especially when the entity the officer actually works for, the state, could pass a law that says, “possession of any marijuana in a vehicle which is not in it’s original and unopened packaging can be used as a rebuttable inference of operating under the influence of marijuana. As such, notwithstanding the non-criminality of possession of x amount of marijuana, the smell of burnt or unburnt marijuana in a vehicle gives an officer reasonable suspension to search said vehicle.”

I think it would be a terrible law, but it’s a lot more sensible than having state officers play FBI agents during traffic stops.

[md-2000]

Smelling of pot is not evidence of the person having possession on their person or in the vehicle, which I assume is the federal charge. It hints at it, but it is not sufficiently definite as to constitute an observable federal crime. Certainly not enough for a citizen’s arrest.

(And as pointed out above, this does not give the arresting private citizen any right to search the car, thus negating additional further justification for the arrest)

Again, if the feds don’t show up, then what? How long can one “arrest” someone? How much force can you use to detain them?

Plus, the whole “agent of the state” thing. You would have a hard time convincing a court that a person dressed as a police officer, driving a cruiser, and having used their state authority to pull you over, is now suddenly to be seen as a private citizen by the person being “arrested”.

I presume “Resisting arrest” only applies to law enforcement, not private citizens attempting arrests?