I don’t believe that is correct. Search incident to arrest is a “bright line” rule. As long as the person is legally arrested (and I know, from other sources, that dustinsquarepants is correct that in Texas they can make a custodial arrest for any traffic violation except two), search incident to arrest is always permitted.
It wouldn’t fly in Washington for many reasons, but I have no doubt that it would be upheld in Texas. I’m sure searches like this have been challenged a thousand times, and the law still stands.
dustinsquarepants is right about one thing: the only way to change this in Texas is to change the laws. I doubt that’s gonna happen, though.
Do they have judges that work in shifts to handle this overnight? Does someone need to wake up the judge to sign the warrant? (I think this is how it works in some ERs, the doctors may sleep until woken up when needed)
For the telephone warrant system, it means that someone still needs to explain the situation and get the judge’s approval, but only that it can be done over the phone instead of a piece of paper, right?
SCOTUS has been unwilling to set a specific time limit on investigative detentions. They have ruled several different ways. Basically what is reasonable depends on the circumstances of each case.
Like others have said I am sure they are talking about blackjacks and other such weapons. Most blackjacks I’ve seen have lead shot not sand.
Judges are called over a taped phone line and given the particulars. His consent is recorded and he is presented a written copy to sign for the records during the day. Probably only very large cities have night sessions. (*Night Court *was a documentary right?)
As Thalion said these things vary widely from state to state. In New Jersey there has to be an articulable suspicion before you are even allowed to ask for consent to search. That is much higher than SCOTUS requires. During a probable cause search we are not allowed to go in the trunk without a warrant. That is also much more strict than SCOTUS requires.
If something is found in a car that is being impounded for any reason it better be proven that every car that is impounded gets inventoried. Since my department does not maintain our own impound lot we do not inventory. It would be a big pain in the ass to inventory every car that is towed for expired registration just so that every now and then we can find a dimebag.
In I think the second post someone mentioned pretending to smell pot. In my experience that is pretty ridiculous. Why make more work for yourself? Cops are the only profession that I see people assuming that they go around trying to make their jobs harder. What people don’t seem to realize is that pot smell sticks around for a long time. If they are the ones smoking they probably can’t smell it themselves. Most of the time it isn’t that subtle. A strong odor. Blunt shavings all over the floor. Seeds and bits of green vegetation on the seat. Its not rocket science. There is no need to make anything up. I’m not saying that there aren’t people who shouldn’t have the job doing bad things. But for the vast majority of the time there is no reason for anyone who isn’t breaking the law to worry. There is no need to manufacture anything, there is plenty of real work to go around.
Except for DWIs I have very rarely arrested for a motor vehicle violation. Generally we would only get MV warrants if the suspect has a long history of failing to appear at court. Bail is set to ensure they show up this time. I haven’t done it in years.
To answer the OP, if you say no, nothing will happen. If there is probable cause then they can search anyway. It is possible that they are just asking to have a level of redundency. Whether their probable cause is valid is an argument for court, not the side of the road. FTR if you say no I wouldn’t assume you are hiding anything. Plenty of dumbasses with a lot to hide have readily given consent. Also FTR I have done quite a few searches due to probable cause, I have never done a consent search as was mentioned in the OP.
I didn’t realize Texas was no longer in the US. It didn’t seem that different when I was stationed at Ft Hood.
I’m honestly not so sure what the point is in refusing a search, if I’m confident they aren’t going to find anything illegal.
I guess people would say sticking up for my rights is the point . . . except if they asked my permission before searching, they haven’t actually violated any of my rights, you know?
It is inconvenient and may feel intrusive. It wouldn’t feel very intrusive to me since the only things you would find in my car are some books and some trash I haven’t thrown out yet. I would find it inconvenient to sit around for longer than I had to.
I know the law stands that a search can be conducted after an arrest. What wouldn’t stand is if a police officer admitted that he arrested someone for a motor vehicle violation just so he could perform a search of his vehicle that he couldn’t otherwise because he has no justifiable cause. That’s a Constitutional violation.
I don’t understand this paragraph. You say it’s ridiculous that an officer would pretend to smell pot and then you go on to talk strong odor and blunt shavings on the floor. You don’t think some cops would just make up smelling pot so they don’t have to go through the trouble of making an arrest for a traffic violation the way that dustinsquarepants says he does? That would be making his job easier, not harder.
Because some people are sick of being hassled because they’re the wrong color, have the wrong type of car, live or work in a bad neighborhood and have to drive through it at night, etc.
No one said that being asked for permission to search is a rights violation.
sorry fantome, they taught me well and I can state for a fact that when we search the way we do, it is not in violation of the 4th. there are a lot of lawyers here who’d tear us a new one if we were indeed infringing upon peoples rights illegally. I’m in a big enough dept ( fourth largest city in us) that our policies and procedures are checked and re-checked by a team of lawyers, triplicated, lost, found, etc. I understand your feeling like we’re just pigs getting away with anything we want, but that’s not usually the case.
the fact is, there is no such thing as a routine traffic stop and the op’s question is flawed, but I answered the best I could to what I understood the intent of the question to be.
and mangeorge, what’s not so cop-ish about me? i am a p.o., police officer sworn by the state and all that good stuff. and since I’m in tx, you know, I have a cowboy hat and ride a horse with my pistol by my side.
finally re: loach, getting stopped is already inconvenient and intrusive, but “do the crime yadda yadda”
I don’t know what is hard to understand. If there is probable cause there is a good chance that there is something to find. If there is no probable cause I am just wasting my time. Tossing a car can be a pain in the ass especially if the person isn’t very particular about the cleanliness of their car. You have to get back up. You have to contain the driver for your protection (lookup the Trooper Coates shooting). Paperwork has to be done. Getting consent and searching a car= more work. Writing a ticket or giving a warning = less work. Without probable cause or at least an articuable suspicion the outcome is probably going to be the same, no arrest. So which way would you pick? More work or less work for the same outcome?
I was confused as to why you mentioned that pot smell sticks around for a long time, if they are the ones smoking they probably can’t smell it themselves, blunt shavings all over the floor, seeds and bits of green vegetation on the seat, etc.
The point was that a cop may lie about smelling pot so he could perform a search based on a prejudice or some other unlawful reason, not that any of those above clues actually exist.
What you and I would do is irrelevant. The matter is what others would do, like one in this thread that claims to be a police officer.
Yes it is possible. I was just refuting the fact that it is likely. The question was what will happen if you refuse a seach. The first answer given in post #2 was that the cop would pretend to smell pot. That is what I found ridiculous. I’m sure it has happened somewhere at sometimes but I reject the assertion that it is a likely occurrence.
And for the record, in my eleven years in law enforcement the vast majority of officers I have met and work with have the same professional attitude that Thalion and pkbites seem to have and I try to have. The ignorant attitude recently seen here is not tolerated.
Of course. As long as you understand that you are waiving your rights under the law. You are saying, “it’s okay if this whole stop/search/arrest is illegal - go ahead.”
Most officers are trying to do their job in good faith. But you know what? Sometimes they are wrong about what the law allows. Not only does training vary in quality across police departments, but the law itself changes rather frequently.
And sometimes they are right about what the law says, and the law is later found to be unconstitutional. Look at Miranda - affirmed all the way up to the highest court of Arizona, then overturned by the Supremes. I sincerely doubt the officers on the scene interrogating Miranda – a suspected bullgar-rapist – intentionally did anything they were not supposed to do or not instructed to do in their training.
*“it’s okay if this whole stop/search/arrest is illegal - go ahead.” *
Cite? Yes you are waiving your rights. But please cite how you are consenting to anything illegal. If there was no probable cause for the stop are you saying that the search would still stand? If you consent then the search itself is not illegal. If there was probable cause for the stop, consent to search and contraband found, how is any of that illegal? Please defend the above statement with some facts.
As to the law changing fast, that is very true. I don’t have the names of the cases in my head at the moment but there have been some major changes in New Jersey over the last few years. As I said earlier, we are not allowed to randomly ask for consent, there has to be at least an articulable suspicion. That happened with a court case maybe 4 years ago. Within the last two years they have put a great deal of restrictions on searches incident to an arrest. That is not true in all states but it does illustrate that the laws are not the same throughout the country and in some places they are much more restrictive than SCOTUS requires.
The stop and the search are analytically distinct - so I definitely misspooke in bringing the stop into it. However, a search undertaken with voluntary consent is per se reasonable. U.S. v. Watson. No probable cause nor search warrant is required. Per U.S. v. Jimino, it is not relevant whether the defendant clearly understood the scope of what he was consenting to, if it was reasonable for the police to search everything they did.
As you note, particular jurisdictions may have laws which are more protective than the Constitution requires.
Whenever you consent to a search you are banking on
You are absolutely certain there is nothing whatsoever in your possession which could be construed as violating the law leading to a custodial arrest. In other words, you know the penal code as well as, if not better than, the average police officer.
The officer is aware of, and does only, what is legally permitted by the Constitution and your local jurisdiction.
2a. you have any idea what is permitted in your jurisdiction.
Is that a gamble most people should take? I would argue there is nothing to gain, and much to lose, by rolling the dice on those 2 and half precepts.
I don’t believe so. Everything I’ve read says that the SCOTUS has never applied a “pretext” limit on searches under the Fourth Amendment. We have that limit in Washington (based on our state constitution), but when it gets mentioned in court rulings they usually comment that pretext doesn’t exist under the Fourth.
I think it’s pretty obvious that Texas doesn’t have a problem with pretext, either.
The manual you quote in post #88 is from New Mexico, so that really isn’t relevant here. Good for New Mexico, though.
New Mexico is run by a bunch of old retired hippies.
Anyway, what I’ve learned from this thread is to never consent to a search no matter where you are, the time of day, weather conditions, phase of the moon, or how nice the requesting LEO (heh heh) is.
mangeorge, you should have learned from this that you can say no, and that there is still a possibility that you’ll be searched anyway. or an even better lesson is to not get pulled over in the first place
I live to get pulled over.
I’ve been stopped three times with no intention of writing me a ticky. Once was a “felony stop” face in the asphalt, complete with the knee to the back of the neck and grinding away. I was totally passive from the get-go and did everything I was told to. There were six cops. Turned out to be mistaken identy. Not even an “oops” or “sorry dude”. No search there, not enough time. Another was because she liked my Audi. The last one was for a mystery reason. No search request.
The last was a couple years ago, but it was for a violation. I pulled out of a Jack in the Box after a 14 hour work day with my yucky dinner. It was on a well-lit main street and I didn’t turn my headlights on right away, but a nice lady in a minivan advised me and I turned them on. A few blocks later a cop pulled me over. I’d even forgotten about the lights. I told him I was tired and wanted to get home before my food got cold. Big mistake. He intentually started dragging things out to use up more time.
The guy was a punk, and I told him so. His (older) partner didn’t interfere.
Anyway, he wrote me for no lights. But I “won” that encounter and he knew it.
No. no request to search. He was too smart for that.
I don’t know if he’s still on the force. I hope he finds a nice job he can handle.
