Ah yes. I see the difference although if you’re not free to leave it’s sort of a technical difference. However being detained long enough to get a ticket doesn’t result in a written record as does an actual arrest.
Bricker, do you have any thoughts regarding the length of time you may be detained while waiting for the K9? What is reasonable?, 20 minutes or so?
I suspect things would have gone differently, yes. 
OK - let’s walk through each step, with legal analysis in hand.
This is of course not legal unless the officer had probable cause to effect a traffic stop. However, it’s not hard to follow someone for a few moments and get something, some minor traffic violation, that can serve as the reason for the stop. Whren tells us that even pretextual stops are valid – that is, if the police want to check you for drugs but have no probable cause, they can wait until your wheel touches the far side of the white lane line and then pull you over for improper lane change.
So… assuming they have even the slightest traffic offense to point to as the reason for the stop, this is legal.
At this point, you might do well to ask him - politely - if this is a request or a command. The lines between consensual activity and a custodial interrogation can get pretty blurry. Because he phrases this as a request, the Commonwealth can piously argue that this was a consentual move on your part. Without getting confrontational, you might say, “Officer, I’m kind of worn out, and I don’t want to misunderstand you. Are you asking me, or giving me a lawful order?”
The officer can generally only ask you to get out if he has some reasonable, articulable suspicion of a crime other than the traffic violation for which you were pulled over, OR a reasonable, articulable suspicion concerning a threat to his safety. If he does, then his order to exit the car is lawful. If he does not, then his order to exit the car is unlawful, and although you should certainly comply with it, it’s likely that anything seized from that point forward will ultimately be inadmissble.
And of course, if he admits it’s simply a request, not an order, then you should say, “As much as I like to cooperate with the police, I would like to remain here in the car.”
Assuming the pocketknife and Leatherman are legal for you to carry, then the demand for you to empty your pockets is an illegal search. Patting down your clothes to ensure you don’t have a weapon is permissible, but forcing you to empty your pockets is a search, and it must be supported by probable cause.
Then complain. Every law enforcement agency has a method to register complaints.
Agreed. Limit your remarks to the officer to a calm statement that you do not consent to any search. It’s foolish of them to search, unless they take the position that, hey, if we find drugs, he loses them, even if we have to drop the charges.
But if this happens to you as often as you say, then complain, after the fact, in writing. You have the right to do so.
No. But the courts have been reluctant to establish a “bright-line” rule about delay.
The scope of the detention must be reasonable, and carefully tailored to its underlying justification.
As a general principle, then, you can be detained no longer than it would ordinarily take the officer to complete the citation process. But this inquiry is heavily dependent on the facts of each particular detention.
No. But the courts have been reluctant to establish a “bright-line” rule about delay.
The scope of the detention must be reasonable, and carefully tailored to its underlying justification.
As a general principle, then, you can be detained no longer than it would ordinarily take the officer to complete the citation process. But this inquiry is heavily dependent on the facts of each particular detention.
The difficulty with all the legal niceties is that the average person is ill-equiped to state the case to the cop and it costs more than many can afford and time off work to argue it later in court.
You don’t have to state the case to the cop.
Just cooperate with orders, but always be clear that you are refusing consent.
Oh sure, but getting any evidence discovered in the auto excluded requires hiring a lawyer which many people simply can’t afford. It is unfortuately still true that usually you can only get the justice that you can pay for. I don’t know what to do about that.
Everyone accused of a crime is entitled to a lawyer. They do not have to pay the lawyer first. No one ever has to navigate an exclusion motion on their own because they cannot pay.
[hijack]Oh sure, and the standard of representation by a public defender is fully equal to that obtainable from a Clarence Darrow. This isn’t intended to denegrate public defenders but the public is simply unwilling to pay the taxes for enough of them to do an adequate job for all defendants who can’t pay.[/hijack]
What unavailable resources does a public defender need to know an illegal search when he sees one?
Is it not common for judges, district attorneys, and police to be in cahoots with one another? Not socially … I mean more in line with a “stop crime by any means necessary” ethic (perhaps coupled with a hint of xenophobia/provincialism in out-of-the-way areas)? Assuming the defendant is lying at every turn, banging the gavel to shut up the defendant’s attorney, summarily overruling the defendant’s attorney’s objections, finding said attorney in contempt for BS reasons … doesn’t that kind of stuff ever go on when there is no fear of oversight?
Consider a small-town, low-profile lawful search case with which there’s no media coverage. Just why would a judge hold a police officer accountable for their testimony? How much is a judge risking by implicitly and invariably accepting the word of a police officer as fact?
Also – just how easy is it for someone with little money and few legal resources to get the results of a bogus trial thrown out on appeal? Is that the time to use your one phone call to speak to the ACLU?
Friendships with the right appellate court justices, for starters.
Maybe I’m too cynical and have watched too many movies, but it just seems that from where I’m sitting – outside of the system, admittedly – that a crooked local-level judiciary plus a crooked local police force can defecate upon the U.S. Constitution for a very long time without feeling repercussions.
What’s a public defender to do when he/she presents all the right information and makes a great case … but the judge convicts his client anyway, just to prove he’s a hardass?
That’s true as a general proposition, but not true in this specific case.
A PD is greatly hampered by things like the lack of an independent investigator, for instance. If he has a client that wants to present an alibi defense, and is being accused by an eyewitness, having an investigator might allow him to dig up dirt to impeach the eyewitness, and discover independent evidence of his client’s alibi.
But when it comes to a suppression hearing of the type we’re discussing, Clarence Darrow, F. Lee Bailey, and Mark Geragos have no particular advantage over a competent PD.
Not in my experience.
I admit I never practiced where there were dirt roads. So I acknowledge th possibility, but I consider it remote. Any felony trial in this day and age will have a transcript. So the shenanigans you imagine would be transparent to a reviewing court. And even if the trial court was in some backroads, small-town time-warp… the apellate court would not be.
In the short term? Very little. Over the longer term? As I’ve said, the use of those tactics tends to explode the longer they’re used. How many complaints against the officer will be filed by innocent people, people he searched after claiming to smell marijuana? Those make a record. Eventually, a defense attorney will be able to say to him during a supression hearing, “You ‘smelled’ marijuana 156 times over the last three years where no marijuana was found, didn’t you?” At that point, the judge’s “implicitly and invariably accepting the word” of that particular officer will stop, or it’ll look mighty funny.
Not terribly difficult. The sort of shenanigans you mention speak for themselves in the transcript.
Well, first of all… not take a bench trial, so he’s talking to a jury instead of a judge as the finder of fact.
And if the judge’s rulings are blatantly rigged, that will be clear on appeal. That’s the beauty of trial transcripts. Even if the judge rules against you, you have the option to make your record – make an offer of proof as to what the disallowed testimony would have been; preserve your objection when evidence is excluded or admitted improperly.
The truth will out.
I find myself in exactly that situation more often than I would care to mention, actually, when I have the law, facts, and a beautifully prepared brief all on my side and the judge rules for the prosecution for no other reason that I can see than because the district asked them to nicely. It’s beyond frustrating. This doesn’t happen in all courts by any means, or even most, but it does happen. One retired judge I know once told my dad “you know, it was a few years before I caught on that my job wasn’t to help the prosecutor.” I don’t think that’s limited to the public defenders, though, but is more a lament of defense attorneys in general.
I was referring to trial, but as long as we’re on the topic, I’m really not sure how much friendships with the appellate judges help, given two briefs of equal merit. When I wrote opinions ruling on motions for summary judgment as a federal judge’s law clerk, I made it a point of honor to not give a shit who the parties or their lawyers were. My father has known our local appellate judges for 30+ years, and they always mention it cordially somewhere in the course of denying my appeal.
This was what I was trying to get at. The main problem I see with the public defender is the lack of a police force sized investigative team. At a supression hearing, the playing field is more level.
There’s no such thing as a bogus transcript, or a steno being on the take or something like that?
Thank you for taking the time to fight my ignorance.
But it has to go to appeal for any of that to matter. I do wonder how many who are found guilty just shrug their shoulders and don’t bother.
One only needs to look at how long it took to free the innocents in Tulia, Texas to cause one to become cynical.
This is GQ, so let me simply state that when cops, judges, and politicians are in league with each other, there are alternatives still open to defendants.
(Hey, it’s based on real events!)