Fun with the 4th Amendment!

[lasersailor184]

Originally posted by x0847Marine
The suspect is a dimwit telling the officer his name, he should have responded "I choose not to answer you questions", followed by "and if I'm not under arrest, I would like to leave"...

I believe (and I am basing this off of no experience what so ever), that by saying those statements, the suspect makes himself a target and the police officer would immediately believe he had done something wrong.  That is based entirely off of me putting myself in the officer's position.


And again, we are back to the original point.  Because I believe that non-cooperation would lead to police action, regardless of what I have done, have I been seized in a routine traffic stop?

[x0847Marine]

Here's another example of where you're free to leave, but doing so could get you arrested for interference..

You exit your pad walking to the liquor store for a .40oz and see all kinds of cops on your block looking to beat some poor minority. Paying them no mind you get to the end of the street and find police tape strewn blocking your path as some pissy little cop is standing there smirking at you.

He tells you to "stop", you ask him "am I under arrest pig?" he says "nope kind sir". You  respond "well then, I'm free to leave.. what smells like bacon?", he quips condescendingly "indeed you are free to leave fine citizen, however if you cross my tape I'm free to arrest you for interfering.. its for your safety and mine "

You're free to leave, but if it interferes with officers business he can arrest you.... and courts have always come down on the side of officer safety.

BTW being "arrested" does not equal being "charged", the cops "arrest" people and the DA / city attorney "charges" them in court. Lets say you decide to cross his police tape and he arrests you, the DA could easily drop charges or decline to prosecute which I promise the officer could care less about. He still put you through the hassle / embarrassment of being arrested, booked and having to appear in court.. while at the same time solving his problem of having someone bothering him.

[culero]

I think that what's being missed here is that the search of the passenger was incidental to detaining the passenger upon recognition of the passenger as a person wanted for parole violation.

So. The traffic stop may or may not have been viable. The police officer may or may not have had justification to search vehicle occupants on whatever theory of probable cause or safety exists. But, so what?

In the event, upon seeing the passenger, the officer recognized that passenger as a wanted man. No matter how he got there, at that point he was duty-bound to confirm his visual identification and proceed to take the wanted man into custody. He could just as easily have seen the car drive by and recognized the guy.

The guy was out in public in a motor vehicle with windows. He had no reasonable expectation to privacy, so far as his identity was concerned. He placed himself in full public view. He was a fugitive. He was liable to be apprehended at any time, with the existing warrant serving as cause. The search, being incident to his identification which was legal, was legal.

Bailiff, whack his pee-pee!

[x0847Marine]

Originally posted by lasersailor184
I believe (and I am basing this off of no experience what so ever), that by saying those statements, the suspect makes himself a target and the police officer would immediately believe he had done something wrong.  That is based entirely off of me putting myself in the officer's position.


And again, we are back to the original point.  Because I believe that non-cooperation would lead to police action, regardless of what I have done, have I been seized in a routine traffic stop?

Well I'm not going to get into the nastier "realities" of how the police do things, but you are correct, standing up for yourself is a sketchy proposition if you don't know exactly what you're doing... not only are cops trained extensively, but they develop street smart ways of getting people to cooperate. The easiest way is to use the driver as leverage, "I'll cite your friend unless you talk to me..." at which point you're still allowed to say nothing, and earn your buddy a ticket in the process.

The pressure gets worse should someone have a warrant / arrestable offense... cars have been towed with car loads of people going to jail because their friend in the back seat exersized his / her rights and annoyed the cops.

The police have lots of dirty little tricks at their disposal, exercising every last right you have could be counter productive to having a good day.

[JB73]

x0847Marine I understand the point of what you are getting at, but I have to ask...


If I am a "passenger" or whatever scenario you choose to put me in, can you search me, and detain me just for being there?

If I ask to leave, and you say "no" when am I able to leave? what are you allowed to do to me while I am "behind the yellow tape" as you state?


what are the laws that govern that? what are my rights as a citizen?


I truly think THAT is the question at hand. I don't intend to separate that from a peace officer doing his / her job, I only ask where does that line of jurisdiction, or power end?

[Sundowner]

Originally posted by john9001
the state police stopped me once for a inop turn signal, all the cop did was hand me a postcard that said i had 30 days to fix the light and have the mech that did the repair sign it and mail it to the state.

thats the way a minor infraction should be handled, no hand cuffs, no body searches, no car searches, no background checks, no drug sniffing dogs, no DUI tests, no fine, or whatever else they could think up.

too many cops want to use a minor traffic stop as a fishing expedition. Maybe they are bored, behind on their quota, over zealous, had a bad day, wanabe barny fifes, whatever.

What he said.                  ^^^

Regards,
Sun

[BluKitty]

Originally posted by Gunslinger
Some of us call those technicalities CONSTITUTIONAL RIGHTS!
...)

What bothers me is that when Cops break the highest laws of our land, they are not held accountable.

Say he found an open container hidden under a  back seat....

Which is the larger crime?  Breaking the constitution, or breaking the open container law for passengers?

Also, by calling a road public and heance, anyone or anything on it is searchable-by this premese it means you can't leave your home without being under the so-called "right" of the state to search you.  Is the city sidewalk not public?  I've seen pleanty of people harassed for walking.

These laws exsist to protect people from bad laws IMHO.   If they can't find a reasonable cause to search someone, maybe there is a good reason.  Most true crimes give probable cause for search easily....it's the so-called victimless crimes and other strange codes and ordenences that are and should be hard to police.... because frankly, the state is overstepping it's rights.  The proof is in them not wanting to follow the highest laws of the land in order to catch such "crimes".  
This is a wise safeguard and should not be allowed to be dissmissed.  Cops need to be held to a higher standard.  They should be reviewed and held accountable for constitutional violations...if cops break such laws, they are criminals too.

his has got to be the trickiest thing I have heard of being debated since say oh "Miranda rights"

You realize Miranda Rights have been removed, unless you're already arrested?  Doesn't even matter if you've asked to speak with a lawyer, but you shouldn't have to cite your rights.

My verdict:.... I don't think Cops have the right to search ANYTHING without a VERY good reason.  Citizens shouldn't have ANY need to cite their rights in order use them.  Cops should be treated as criminals, if they break the law.

For this case however, if he recognized a wanted person, in a public area; that is a very good reason to question and search THAT person.

[Rolex]

I would overturn the CA. ruling.

- The California ruling is overly broad and beyond the specific circumstances of the case or defendant.

- The defendant in this case identified himself and was a parole violator, if I read the information correctly, thus, the search and seizure of him and his property was lawful.

[Brenjen]

I can only say what really happens not what the law says should happen. I'm not a judge so I can't speak to what ruling I would make if I were to put on the robes. However I say adhere to the Constitution of the Untied States of America first & foremost. If I were the judge, that's where I would start.

[Terror]

Originally posted by Shamus
The driver is the one that may have broken a traffic law that caused the stop.

If the passenger exits the vehicle and asked if he was under arrest the officer would have to say either yes or no, if yes the 4th and Miranda applies, if no he walks away if he is smart. If he is not, he goes thu this.

shamus

Not being "under arrest" does not mean you are free to walk away either.

Terror

[Hornet33]

Originally posted by Dinger
A) Hornet's missing the point, but we already knew that. The itechnical issue here is whether a passenger who is arrested after a traffic stop can challenge the basis of that traffic stop. In other words, when an officer pulls over a car, has he pulled over just the driver, or the passengers as well?

No I don't believe I'm missing the point. After reading the other link concerning the traffic stop, I still think the stop was legit. Even though the officer had run the EXPIRED plates and found that the owner of the vehicle had submitted paper work to renew the plates the vehicle was still driving with expired plates, which is illegal. Had the owner properly displayed temp plates as is required by law there wouldn't have been a problem. The officer had every right to stop that vehicle even if it was just to inform the owner that they needed to display temp tags.

Now in this case, during the stop the officer recognized the passenger as being one of two brothers, one of which had a warrant for his arrest. Upon asking for the guys name and finding out he was the one with the warrant, he was placed under arrest and then searched. Remember now that all this happened on a public street. You have no right to privacy out in public. You have the 4th to protect you against having your person or your car searched without probable cause, but once the officer recognized the passenger as a wanted criminal with a valid warrant for his arrest, that no longer applies.

Or are you saying that if a police officer sees, or thinks he sees a known criminal riding as a passenger in a car, the officer can't pull the vehicle over to detirmine who the passenger is?

Also in NO WAY was anyone or anything seized at the time of the traffic stop. By the very definition of the word this did not happen. The officer did not take the car and everything and everyone in it away from the owner. To seize something you must take possesion of something. At no time was the officer in possesion of the car, therefor he did not seize the car from the rightfull owner.

I've worked as a law enforcement officer. I know what a seizer is, and a traffic stop isn't it.

This guy is trying to use some fancy legal crap to get his butt out of trouble and the sad part is people are buying it.

[x0847Marine]

Originally posted by JB73
x0847Marine I understand the point of what you are getting at, but I have to ask...


If I am a "passenger" or whatever scenario you choose to put me in, can you search me, and detain me just for being there?

If I ask to leave, and you say "no" when am I able to leave? what are you allowed to do to me while I am "behind the yellow tape" as you state?


what are the laws that govern that? what are my rights as a citizen?


I truly think THAT is the question at hand. I don't intend to separate that from a peace officer doing his / her job, I only ask where does that line of jurisdiction, or power end?

Officers are allowed to perform a cursory search, or "pat down", for weapons on just about anyone they have a professional contact with...

Like I described above, you many be free to leave... but if the officer tells you that doing so will delay, obstruct or interfere with his traffic stop.. he could arrest you for 148PC.

The question at hand though is weather or not an arrested passenger can challenge the basis for the stop... which I believe he should be able to. In this case the stop was illegal, or I'll wager will be, since the officer confirmed (he knew) the vehicle was legally allowed to be on the road, but stopped him anyway... IMO if the PC for the stop is bad, everything found thereafter is bad.

[lasersailor184]

The police officer stopped the same car twice.  He found out the first stop that the car's registration was expired, but being renewed.


After stopping it the second time, he then SAW the parole violator.  I believe the second stop was illegal, and the same protections that are given to the driver should be given to the passenger.

[x0847Marine]

Originally posted by lasersailor184
The police officer stopped the same car twice.  He found out the first stop that the car's registration was expired, but being renewed.


After stopping it the second time, he then SAW the parole violator.  I believe the second stop was illegal, and the same protections that are given to the driver should be given to the passenger.

Actually I think he ran the plate 1st, learning the application was in progress and the car was legally on the roadway. Then later decided to stop the car for displaying an expired tag...

The main purpose, "spirit of the law" stuff, behind stopping a car displaying expired tags is to ascertain the registration status, but in this case the officer confirmed the vehicles legal status via police radio... then stopped them anyway.

If the t-stop was bad, the officer had no legally justifiable reason to be in contact with the passenger IMO.

I dont think allowing the police to gather evidence from cars they stop despite knowing its legally on the road is a good idea.

[Toad]

I found this here , supposedly a "forum for discussion on relevant issues in the area of criminal justice training and professions."

Bruce Brendlin was a passenger in a vehicle driven by Karen Simeroth when the vehicle was stopped at 1:40 in the morning on November 27, 2001. Deputy Brokenbrough had observed Simeroth�s 1993 Buick with expired tags. Prior to the stop he had run the vehicle registration and determined that an application for registration was in progress and the vehicle has a temporary tag indicating that the temporary registration expired at the end of November.

Notwithstanding all indications that this vehicle was registered, Deputy Brokenbrough decided to stop the vehicle because he could not determine if the temporary tag matched the vehicle. It was subsequently determined that this stop was bad due to the evidence that the vehicle did, in fact, meet the registration requirements.

I think as many have said this stop was indeed illegal because the Deputy had verified the temporary tag was legit. Thus all evidence stemming from it are "the fruit of the poisonous tree". So Brendlin gets a pass this time, even though he is a druggie scumbag.

Addressing the issue of whether a passenger in a vehicle subject to a traffic stop is �seized� for purposes of the Fourth Amendment, I find that the passenger is indeed seized. I think it's unrealistic to believe that a passenger can just exit the car and walk away from a stop by a police officer. The idea that a passenger can ask permission to leave merely confirms that the passenger is held until released by the arresting officer.

So in addition to the evidence being tainted by the illegal stop, I find that Brendlin was indeed seized and his 4th Amendment rights were violated.



I predict the SC will find for Brendlin as well and I think it will be a near majority.