I mentioned in my first post in this thread that I am not a lawyer. I thought that was enough to qualify me as a guesser but I suppose it wasn’t clear enough so I will explicitly say I am just guessing here using a faulty memory and what seems to be bad reasoning on my part.
That said Bricker, you aren’t doing much better (highlighting is mine):
The case Minnesota v. Dickerson (91-2019), 508 U.S. 366 (1993) seems to differ. In this case Mr. Dickerson was leaving a building known for cocaine trafficing and was stopped by the police and subjected to a pat down. The officer felt a lump in Mr. Dickerson’s pocket which he took out and found to be cocaine.
The court ruled the stop and the patdown were legal but the pat down (as described above) is intended to find weapons. The officer never thought the lump was a weapon therefore his continued search of the pocket was unconstitutional and the cocaine evidence was suppressed.
In short, Terry v. Ohio (linked above) allows police to perform a patdown if they have a reasonable belief a danger exists. This patdown is to find weapons that are a danger to the officer and may not be used to expose evidence of a crime.
Not without a bunch of really good reasons. Eleven of them exactly. Well, not exactly. There’s eleven factors that the court considers to determine whether circumstances were exigent and if the warrantless search was…uh…warranted. Mrs. Tonk had a warrantless entry case about a year ago. Here’s a brief cut-n-paste excerpt of her motion (of which I have express permission to reproduce here) outlining the eleven factors, preceded by some other interesting bits to give it some context.
Please note: IANAL, so forgive my ignorance if the cites are presented improperly.
The above bolding is mine. Mrs. Tonk won the case and her client’s charges were dropped. I hope this answers the OP.
I just wanted to point out that the case Whack-a-Mole mentioned concerning the college students and their dorm room. The case is WA v. Chrisman, 455 US 1.
While the WA State Supreme Court threw it out, SCOTUS reversed that decision stating that the college student who didn’t have his ID was under custodial arrest and that the officer had a right to be with him. While at the dorm, the officer stood in the door way and noticed the marijuana in plain view. Upon asserting that it was marijuana, he mirandized both students (the original and the room mate in the room), after which both waived their rights and gave the officer permission to search, plus they handed the officer a box containing more marijuana and cash. You can read more at
Also Rknot:
Could you, or anyone else, please provide a cite for that? While I believe it could happen, I do not believe that there weren’t other circumstances involved.
On a side note, if you should happen to voluntarily give permission to search your house or car, you decide the limits of the search and may terminate the search at any time. Unless, of course, they find something that gives them probable cause to arrest you.
This was the Original Post. It is also, in large part, about one-half of what we discussed during my Criminal Procedures course at law school, a two-quarter course. It is idiocy in the supreme to expect that the complexities of constitutional law regarding searches and seizures covering such a wide area can be reasonably answered on a message board for goodness sake. NOT, I see, that there aren’t those who want to try, usually without reference to a good hornbook on the subject.
As anyone who has seen prior posts on constitutional issues knows, I can often end up posting several screens worth of material answering very narrow constitutional questions such as, “can you refuse to let an officer search your trunk after he has found you have no driver’s license?” Multiply that by all the variations inherent in the original question and WOW, the mods would kill Bricker or I if we attempted a real answer to the OP.
My recommendation to Jinx, and anyone else with similar interest in basic constitutional law is that you obtain a good tract on the subject, such as the one written by Nowack and Rotunda, or the one by Larry Tribe (if you prefer a liberal viewpoint). Of course, they can be a bit detailed, but really there is a lot of fun in exploring the development of the case law; after all, it explains why the court is doing what it does these days.
As for guessing in answer to a GQ here on The Straight Dope, why would you ever do that? It hardly fights ignorance.
I guess that settles it. From now on no one should try posing difficult or broad questions to the SDMB. Go out and study for yourself the discipline you are asking about instead (never mind that some people can spend a lifetime doing just that on some of these topics).
An answer on the broad strokes of how the law (in this case) works is useful. You can always add the caveat that it can get quite difficult and loopy and ultimately needs to be taken on a case by case basis and suggest further sources of information if anyone really wants to delve into it.
Heaven forefend! Guessing about answers on the SDMB? What is the world coming to? From now on everyone cease answering questions unless you can claim direct expertise in the topic. Bricker and DSYoungEsq will handle law, Chronos can handle physics and cosmology, Chief Scott can field naval/military questions (etc., etc.). Everyone else just sit back and don’t bother answering since you clearly have nothing to add (sarcasm alert for the sarcasm impaired).
While making no claim to expertise I believe myself (and others) have done a reasonable job of backing up our speculation. Thanks to Xgemina one of my first examples has been backed up with a reference (my second example was probably pulled out of my ass but I said as much when I wrote it to begin with). Since then I and others have tried to include cites wherever possible.
Fighting ignorance while guessing? I believe so. As we work throught the issue we learn more about it and it begins to dawn on us (in this case) just how large the real answer is as well as its importance. To have Bricker and/or DSYoungEsq or other expert(s) come along and sweep out the bad info and expound on the good only helps matters further.
In the end hopefully some of us will walk away with a better understanding of the law and (again in this case) a better understanding of how our constitutional rights are being eroded. As awareness rises maybe the brakes can be put on this erosion. I wouldn’t expect miracles but it has to start somewhere and the SDMB can be a piece of the puzzle.
In all I would contend that this is a good thing and threads like this are worthwhile. If nothing else I’ve had fun participating in it so my vote is to let Jinx or whoever to keep at it with the ‘big’ questions.
Well, I certainly don’t have a law degree, but I do drive a car, and own a house. And I don’t think any police officers that I’m likely to come across have law degrees either. Sooner or later I’m likely to come in contact with the police, and I, for one, think I’d like to have some idea of what my rights are as an American Citizen, with respect to searches. If only, at least, to anticipate how to behave in such a situation. Message boards like this are one way for us ignorant citizens to swap info and advice on the matter.
But if, as you suggest, I need to go to law school (and, pay taxes to educate all police also) in order to have some peace of mind on the matter, well, America is in big trouble.
Attitudes like this is what makes people come up with lawyer jokes.
The doorbell rings. The police officer at the door says that there has been a complaint that you are having a noisy party. You tell him the party is already over, and everyone has left. He asks if he can come in, and you give him permission.
He then asks if you had any illegal drugs at your party, and you say no. He asks “Do you mind if I look around?” You say “No, you may not.” He tells you to sit down, looks in a nearby drawer, finds the quarter-pound of marijuana you have stashed there, and arrests you.
Fast forward to your court date. The officer in question testifies that you gave him permission to search. His partner backs him up.
Nothing.and the cop knows it. I have never been to court where a cop did not testalie.
I make it a point not to talk to cops. The only reason they ask questions is to get an admission of guilt. Cop to you, “Where were you going to so fast?”
You to cop, "I’m going home.
Cop to judge, "Suspect told me he was speeding to get home.
One cop, who I said not one word to gave the judge a five minute spiel about all the things I said to him.
Judge responded with, “Considering everything he said guilty.”
Reckless bicycle riding.
While DSYoung may have been a little harsh in his response, he is totally correct. The nuances and nit-pickiness of constitutional law makes it very difficult to tackle the broad question, which has since been hijacked all over the place, stated by the OP.
For instance, Whack-a-Mole, your analysis of Dickerson is incorrect. While Terry stops and frisks are ostensibly used only to protect an officer in danger, evidence of other crimes found during a Terry frisk are often admissable. In Dickerson, the court merely found that there was no way that the officer could have known that what he felt in the appellant’s pocket was cocaine and that he should have moved on when he knew it wasn’t a weapon.
If the officer had felt something that he could have instantly known to have been contraband, a crack pipe, for instance, then that would be admissable as evidence.
Haven’t heard from you in a while, DSYoung. Miss your insightful posts to the message boards, here.
I agree that the nuances of law cannot be thoroughly explored on a message board. That does not mean that it isn’t worth discussing here as long as everyone understands that the answers are not gospel but at best vague stabs at a big issue.
That’s not entirely fair. It seems the “plain view” doctrine allows for an officer to legally uncover evidence if the nature of that evidence is immediately apparent to the officer. Otherwise, a frisk before you’ve been arrested for anything is strictly meant to find items that may be construed as dangerous to the officer(s) conducting the search.
In Dickerson the officer had seen the suspect leave a building known for cocaine trafficing and felt the packet in the suspect’s pocket during a legal Terry stop. I’m certain that cop had felt or seen dozens of packets like that one in his career (an assumption, I know, but a safe one I think) and he had circumstantial evidence to support his view that the suspect might be carrying narcotics (the stop was ruled as legal afterall). Nevertheless, because the officer fondled the packet through the pocket that was considered an illegal search beyond what is allowed under Terry and the evidence was suppressed. If the officer did not fondle the object but immediately withdrew it and said it was immediately apparent to him what it was would that have been ok? (I don’t know…I’m really asking on that point.)
It seems we have a great big gray area here. What constitutes immediate recognition of an object? Even a crack pipe may not be immediately obvious as such without at least a little further investigation (via touch). This illustrates (a bit) what I think DSYoungEsq was getting at that these things can get hopelessly complex very quickly and that ultimately each instance needs to be taken on a case-by-case basis by teams of lawyers and judges.
I still think it’s interesting to kick around if only on a message board.
