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I think Manny meant post arrest, but you're surely correct.
actually.....and someone can correct me if I'm wrong......but a visible joint in the ashtray, or the smell of weed in the car, is easily probable cause for a warrantless search.
I think Manny meant post arrest, but you're surely correct.
Then you should be ok with the driver telling the cop to off and pulling onto private property.
I don't know you but your stories give me the distinct impression that officers are concluding something about you based upon your appearance or your car type, and with that I have a huge problem. Why do they need to search your car if the light is out by your license plate?
I have always wondered about private streets in gated subdivisions. I once had an SAPD motorcycle cop follow me down the road quite some distance and then follow me into my gated subdivision. He then followed me down a couple of streets and finally stopped to tell me that I should not be pulled over facing the wrong direction on the side of the road to get my mail. He never asked for a license or wrote me a ticket- I do not even know if he can. A friend with SAPD told me the cop was probably looking to meet women- seriously.
Last edited by ploto; 04-22-2009 at 03:23 PM.
he probably did.
Fock him any way.
not if you tell him to fock off on a public street before pulling onto private property.
No, he can't write you a ticket in a gated community that maintains their own streets. You can look at a planned unit development basically the same way as a giant ranch.
Unless you committed some offense on the public street, by following you in through the gate means he was technically trespassing.
I would hope most feel that the citizen's rights should supercede the needs/wants of the State.
Sadly, it seems your average American is so damn scared to leave their house, theyd rather the State have more power than intended in order to better protect them.
That's not true at all. It might be that the officer is prohibited from writing a ticket for violating a law that applies only to that street -- a speed limit, for example -- but if the driver undertakes an act that is prohibited anywhere in the state -- something like reckless driving -- the officer damned sure can write a ticket for that act. Think about it this way: if there's a wreck in a gated community, who comes to investigate? The local police or sheriff. And when the agent of that investigatory body arrives, he's not prohibited from assessing blame or charging the blameworthy party or parties from violation of the law.
In the same way, an officer surely can arrest someone for crimes committed within a private home.
All of that ignores the point of the entire issue here. There is no doubt that a police officer, to conduct a search of a person's vehicle must have probable cause to support the search and the issuance of a warrant or he must have some basis to proceed under an exception to the warrant requirement. A person's mere presence on a public roadway does not create an exception to the warrant requirement and it doesn't create probable cause. That's true substantially because a person has an expectation of privacy -- though one that might be slightly diminished -- while in a motor vehicle. The Fourth Amendment is certainly intended (at least in part) to protect the privacy of individuals from baseless governmental infringement. The cons utional tradeoff is that if government can develop probable cause to believe that a particular crime is occurring (or has occurred) in a specific place, it can search private places. Without that probable cause, the individual right to privacy (not expressed in the 4th Amendment, but necessarily implied in the protection it affords) wins out - period.
I assumed we were talking traffic violations.
A citation for reckless driving on private property is debatable.....depends on the situation, and really, the cop would have to be invited in by someone in the community to enforce such a violation.
I thought it was understood that a cop can come onto the property when invited in to investigate, say......murder?In the same way, an officer surely can arrest someone for crimes committed within a private home.
I guess it wasn't.
I don't disagree with any of that......especially the part about diminished privacy while operating a motor vehicle on a public street.All of that ignores the point of the entire issue here. There is no doubt that a police officer, to conduct a search of a person's vehicle must have probable cause to support the search and the issuance of a warrant or he must have some basis to proceed under an exception to the warrant requirement. A person's mere presence on a public roadway does not create an exception to the warrant requirement and it doesn't create probable cause. That's true substantially because a person has an expectation of privacy -- though one that might be slightly diminished -- while in a motor vehicle. The Fourth Amendment is certainly intended (at least in part) to protect the privacy of individuals from baseless governmental infringement. The cons utional tradeoff is that if government can develop probable cause to believe that a particular crime is occurring (or has occurred) in a specific place, it can search private places. Without that probable cause, the individual right to privacy (not expressed in the 4th Amendment, but necessarily implied in the protection it affords) wins out - period.
I just wonder about the inconsistency (in my opinion) between searching a person's bag in an airport and searching their bag on a public road.
I draw the line at cavity searches.
BB said it best. In an airport, you can turn around and walk out.
Not so much on a public road. You being a small part of the financing of that road, I might add.
Have you ever driven to Hawaii? Me neither. I usually go to the airport that I was a small part of the financing of.
You can turn around and go home if you don't want to be in a car on a public road.
Why? There is already cause for the arrest. Some police just have fun trashing peoples cars for no reason, yet it's done with acceptable practices, so they aren't held accountable.
What reasonable su ion did the car give them to be violated? What did the car do?
Let the information gained be used for a request of a warrant, then searched in a controlled environment. The car is a place that contraband can be stashed, but so is public transportation, shops, etc. If the police follow a suspect, do they search all those places without a warrant?
What if it was your car that was loaned out or stolen. Would you want the upholstery ripped up for no good reason?
What does it hurt to arrest the suspects, impound the vehicle, and verify any story about the good before issuing the warrant? What if they were in fact high, but moving? You didn't say anything like they were a dozen on the same Blu-Ray players in the boxes...
Even under that case. Isn't seeing the goods more a reason to arrest, without the need to search?
So they see your car parked in your driveway, matching the description. I guess you'd be OK with them braking down your door?
(I had written a long response to this, but somehow in typing more managed to delete it -- I don't have time now to recreate all that I had written. What follows is a synopsis)
In reading a bit about this, airport screenings have been upheld because they amount to administrative searches that are supported by special needs in the same way that border checkpoints and sobriety checkpoints are viewed as cons utionally permissible while checkpoints aimed at ferreting out criminal activity, in general, are not permissible.
The distinction, I think, is that airport screenings arise from a very specific need -- the need to prevent criminal conduct on airplanes where law enforcement is sparse if available at all (and, thus, unable to deter crimes in progress) -- and is intended only to obtain a binary answer to whether a particular passenger is travelling with specific types of contraband or engaging in specific kinds of conduct. By contrast, a search out on a public roadway without pre-existing probable cause tends to arise from a more general interest -- an interest in determining whether the person is engaged in some type of criminal activity, without regard to the possession of any specific type of contraband or the undertaking of any specific kind of conduct.
While I can see that the answer might not be one that fully satisfies some skeptics, at the present time, that is the cons utional distinction that allows one and not the other. See United States v. Aukai, 497 F.3d 955 (9th Cir. 2007)(en banc)(holding that airport screening without warrant is cons utionally-permissible "because they are 'conducted as part of a general regulatory scheme in furtherance of an administrative purpose, namely, to prevent the carrying of weapons or explosives aboard aircraft, and thereby to prevent hijackings.'"); see also City of Indianapolis v. Edmond, 531 U.S. 32 (2000)("We have also upheld brief, su ionless seizures of motorists at a fixed Border Patrol checkpoint designed to intercept illegal aliens, United States v. Martinez-Fuerte, 428 U. S. 543 (1976), and at a sobriety checkpoint aimed at removing drunk drivers from the road, Michigan Dept. of State Police v. Sitz, 496 U. S. 444 (1990). In addition, in Delaware v. Prouse, 440 U. S. 648, 663 (1979), we suggested that a similar type of roadblock with the purpose of verifying drivers' licenses and vehicle registrations would be permissible. In none of these cases, however, did we indicate approval of a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing.").
For what it's worth, Aukai is quite clear in saying that the cons utional basis for airport screenings has nothing to do with implied consent. The Court had to deal with that issue because the defendant had, in the midst of his screening, disavowed any intent to get on the airplane and argued that he no longer had consented to the search. The Ninth Circuit essentially held that once you get to the point of engaging a screener at all, the administrative search is cons utionally reasonable and may be continued even if you decide that you aren't going to fly.
Damn, that's some legal scholarship. My next trial memo will have the following cite -
See Downtown, From Way, Supreme Court Limits Warrantless Car Searches, Spurstalk Forums, post #68, April 22, 2009.
I was just going to say that there's a clear distinction codified in the law about airport/border check point searches vs other criminal searches. FWD beat me to it.
I like this decision, and I honestly think airport/border checks should follow next, in the sense of relaxing them a bit. In all honesty, I see them more of a 'make people feel secure' than actual security.
um, yes the government pays for the public roads
but who pays the government ? taxpayers.
so we are back to square one.
It's a mixture of driving late at night and officers being bored and looking for something to do.
One time I was droping a female friend off at her house and I didn't know the area very well so I was driving slowly. An officer pulled me over and said he was stopping me for a dim light on my plates. After we told him our stories, and he ran my information, he told us that the stop was just a (and I quote) "a chicken reason to pull you over. i really thought you were casing houses. Not really something I can prove, but there have been some robberies in the area and you never know. Y'all have a good night"
I've had my car searched 3 times. Once was after a stop for a broken headlight, one was for a stop for a broken tail light, and one was for taking a turn a little bit too fast.
The first two I put under a bored cop looking for a bust. The 3rd I put under them thinking I was under the influence.
or they're ing with you cuz you're DWB.
Where does this leave the Carroll doctrine?
That can be a capital offense in some counties.
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