Yes, be careful of word games:
LEO: “You don’t mind if I search your car?”
You: “No.”
LEO: “No, you don’t mind? Then I am conducting a search.”
LEO: “You don’t mind if I search your car?”
You: “Yes.”
LEO: “Yes, I can conduct a search? Then I am conducting a search.”
Lesson learned: do not simply respond with “yes” or “no.” Instead say, “You do not have permission to search my vehicle.”
As I understand it, if the cop really did have reason to suspect alcohol, and searched the car (at least, those portions of the car which could plausible contain alcohol accessible to the driver), then anything illegal he found would be fair game, even if it had nothing to do with alcohol. But that’s in the scenario where the cop really does have reason to suspect alcohol. In the scenario in the OP, the cop factually does not smell alcohol, as would be made clear by the results of the search, and so did not actually have reason to suspect alcohol like he claimed. Is it a valid defense to assert that the police officer did not in fact have the reasonable suspicion that he claimed he had?
And in response to that, the police will often include cash on the list of what they’re searching for, because cash could be hidden almost anywhere.
I think the point Bricker is making is that there’s no reason to worry about what the legal procedures are if the police officer isn’t going to follow them anyway.
Once legal procedures are out of the picture, the situation is an argument between you and a man with a loaded gun. You decide how much you want to argue.
I believe the basic principle is that evidence of a crime is admissible as long as it was found during the course of a legal search. Even if it’s evidence of a crime that the police didn’t know about prior to conducting the search.
So let’s say the police have evidence that causes them to believe you’re making meth in your basement. It doesn’t matter what the evidence is but assume it’s substantial and reasonable. So a judge signs a warrant so they can search your basement for drug-making equipment.
But the evidence, while substantial and reasonable, was wrong. You’re actually making your meth in a storage unit you rent. That’s because you use your basement for torturing and murdering the prostitutes you kidnap. And the police find the evidence of all of that when they search your basement.
Because the initial search was legal, the evidence that was found is admissible even though the police were initially looking for different evidence.
As always, I am not a lawyer. So real lawyers, correct me if I’m wrong.
This is really the bottom line on the whole thread and the dozens of others like it.
The fourth Amendment is some fading ink on some moldering parchment. As is every other law in every land. In and of themselves they’re all just inert albeit high falutin’ words.
What makes them go is humans and human bureaucracies and human societies. You (any you) will have the rights on the paper to the degree the whole chain of humanity supports that.
If judges support 4A but police don’t, there will be lots of instances of planted or otherwise bad evidence being thrown out of court. If police support 4A but judges don’t, there will be very few instances of planted or otherwise bad evidence introduced in court. But when they are, they’re going to be accepted as good. If juries support 4A but police and judges don’t, there will be lots of instances of planted or otherwise bad evidence being approved by the judge. Juries will choose to ignore that evidence and find how they prefer.
Where we are today is each of the layers in the system is less than perfect. IMO it’s quite arguable whether the situation is better or worse vs. 10, 20, 50, 100 years ago.
It seems clear to me that our standards for how much sloppiness or cheating we want to accept is shifting quickly. Probably in both directions at once. More and better recordkeeping, such as vid cams out in the field, will go a long way to reducing both sloppiness and cheating.
Consent is revocable. You can proclaim to the heavens that you are giving consent and then change your mind and it has to stop.
In my state anyway if consent isn’t very clearly given, ideally by signing a consent form and having it on video, it is most likely getting thrown out in court.
Also in my state the scenerio in the OP makes no sense. Alcohol is not illegal so smelling it does not give probable cause for a search. Even an open container is just a minor motor vehicle offense not a crime so there is no probable cause. Of course smelling alcohol would make me observe the driver closely for signs of impairment but it in no way leads to searching the car.
Can anyone here tell us how this plays in California?
I don’t even know what the discussion is about. Police kill people all the time and get away with it. Is there any practical (as opposed to “letter of the law”) limit on their ability to search your vehicle? No.
If you are within 60 miles of the Mexican or Canadian border you have no 4A rights, though most police agencies will follow 4A procedures. Similarly if you are driving in a declared High Intensity Drug Trafficking area (I20 west of Ft Worth, US80 between Dallas and Tyler, all of Hwy 69 etc) you have no 4A rights. What typically happens in Texas is refusing consent ends with you squatting on your heels on the side of the road while the officer waits for a K9 unit to check for probable cause. My last search the officer said my window tint was too dark, but he really stopped us because I’m white and was with a male Mexican friend, which fits one of their profiles. I never argue with them anyway since my record is flagged with an obstruction of justice conviction, Jeez, one little fist fight with the cops and you hear about it the rest of your life…
and I guess the responses to this post are proof black people don’t read the message board.
Yep that’s it. There would be no evidence supporting the LEO’s “reasonable suspicion” so would the defendant be able to claim he had no right to search the car?
Interesting: Over here, if a cop smells alcohol you will have to blow down a tube which will probably lead to a year of taxis and cadging lifts, followed by five years of sky high insurance premiums.
If he smells cannabis he will do a saliva test and search your car with or without your consent - in fact, you will probably be sitting in the back of his car wearing plastic bracelets. You can’t be prosecuted for having half a bottle of Scotch on the passenger seat, but you can be charged with possession if they find a baggie of weed. If they find a large wad of banknotes (there is no definition of “large”) you will have a hard time getting that back if you can’t show how you came by it.
Can I film you while you do?
That would be my first question. If he says no, I say no.
To clarify my earlier comment that ‘fruit of a poisoned tree’ doctrine is the greatest restraint on illegal searches. It means that a small and seemingly minor misstep (on the police’s part) can (and has) render an entire investigation useless in court.
We worry about tickets, fines, jail time, and the like. Cops worry about being the idiot that ruined days or weeks of hard work and eliminated any chance of prosecuting a suspect.
There seems to be a lot of issues discussed here but I don’t think my question has been answered so let me restate it.
A cop searches your car based on the probable cause of smelling alcohol (or for Loach not to dance around the hypothetical let’s make it marijuana in his state). There is no alcohol in the car, no bottles, driver blows a 0.0 on the breath test, etc. Will a judge throw out the search since there was nothing supporting the cops “probable cause”? If not, then what prevents cops from making shit up to search a car?
In your example, how would the case come before a judge if nothing incriminating was ever found during the search?
Because while searching your car, he found a handgun under the driver’s seat, a baggie of crack, $10,000 in cash and half a pancreas.
I really do hope that any car I’m in contains at least a full pancreas.
The Judge may or may not, depending on the “reasonableness” of the officer’s actions. The officer must have sufficient reason based upon known facts to believe a crime has been committed. The judge doesn’t have to believe the cop, of course. The fact that the driver wasn’t drinking (or no marijuana was actually found) might influence the judge’s opinion of the cop’s credibility.
BTW, smelling “alcohol” wouldn’t justify a search, as it is not illegal to drink and drive up to a certain point.
But the main point is that the search is judged by what is known at the time, not what is or is not discovered later.
I don’t see why a judge would; if the cop had a valid reason to be looking it wouldn’t matter that he didn’t find the original thing of interest. Not finding the weed or alcohol doesn’t mean there was nothing supporting the probable cause.
The diabetic driver (who’s breath always has a alcohol-ish smell) just finished his drug deal where he handed over 20 pounds of weed to a buyer, and the car still reeks of pot. There is no alcohol or weed in the car, but it sure would be reasonable to think there was and check for it. On what grounds would you toss the search?