close

Privacy guaranteed - Your email is not shared with anyone.

need some help with case law

Discussion in 'Cop Talk' started by apphunter, Feb 23, 2010.

  1. apphunter

    apphunter

    Messages:
    92
    Likes Received:
    23
    Joined:
    Mar 3, 2005
    My Sgt. and I were having a discussion after a traffic stop. My Sgt claimed that on a stop where you detected an odor of marijuana and found seeds in the passenger area that you couldn't search the trunk. I claimed you could based on the vehicle exception and the odor of marijuana was enough to give you probable cause to search any where in the vehicle that could possibly contain marijuana including the trunk.

    Does anyone have case law handy so I can take it back to my Sgt. I am pretty sure I'm right on this one.

    JD
     
  2. Gangrel

    Gangrel

    Messages:
    1,865
    Likes Received:
    0
    Joined:
    Oct 12, 2007

  3. Philly K-9

    Philly K-9 Run! I Dare ya!

    Messages:
    503
    Likes Received:
    0
    Joined:
    Oct 18, 2005
    Location:
    Philadelphia, PA.
    Where, what and when you can search depends upon the case law of YOUR STATE. For example, under federal case law you have more than enough to search the entire cehicle. However, in my fouled-up state, our case says that you need a warrant to search a car. Period. No such thing as a vehicle exception in PA.

    Research your State's case law. Most likely you're right but it's best to be sure. Good luck!
    John
     
  4. Malstorme

    Malstorme Bad Influence

    Messages:
    121
    Likes Received:
    0
    Joined:
    Oct 2, 2004
    Location:
    Oklahoma
    First, I don't agree with your Sgt (unless your state is F'd like the previous poster said his is). Read what you can find on Carroll (linked earlier) and model your behavior accordingly.

    Second, I can't imagine being in the scenario discussed. If I smell dope in a car, the first thing I'm doing isn't combing the carpet. Marijuana whose odor can be detected is usually in larger quantities or recently burned. Seeds would be the LAST thing I found in a car that smelled of Marijuana because I'd be looking under seats, in compartments and the trunk before looking for trace amounts. (FWIW, I don't really give a #$&*#^$ about trace amounts anyway. I'd rather "miss" something petty because it's not worth tying myself up.)

    You might consider your search methods. Look for larger items and work your way down to close inspection for smaller... It would avoid the very scenario you describe.

    Mals
     
  5. ctaggart

    ctaggart

    Messages:
    1,507
    Likes Received:
    1
    Joined:
    Dec 4, 2007
    I hear ya there...PA has the strictest search and seizure laws in limiting the authority of the Police. Pain in the ***.
     
  6. spdski

    spdski NRA Life Member CLM

    Messages:
    4,306
    Likes Received:
    0
    Joined:
    Sep 6, 2005
    I think WA might take you to battle there...

    Hell, in WA, pretext stops are actually prohibited.
     
  7. lawman800

    lawman800 Juris Glocktor

    Messages:
    38,472
    Likes Received:
    118
    Joined:
    Apr 3, 2002
    Location:
    It just keeps getting better, don't it?
    Funny thing is CA law is actually okay on that matter... or at least it is the way I remember it.:whistling:

    With the scent of marijuana and seeds, I have PC to search the car for contraband anywhere it can be located. You bet I am tearing that car apart. If nothing else, once I find something to arrest the driver on (not hard to do in the hood), I am impounding the car and doing a complete inventory. Then nothing is off limits.

    Funny you ask, I just had to do that three times in a row last month on 3 stops. The smell was overwhelming on 2 of the 3 stops. Got 2 hits and found weed and a no find on the third one even after an inventory. Funny thing is, the one no find was one where there was a strong smell and one stop was routine equipment violation but the passenger copped to having weed on him after the standard 3rd degree, "YOU BETTER TELL ME WHAT YOU GOT OR ELSE!"
     
  8. SAR

    SAR CLM

    Messages:
    2,698
    Likes Received:
    269
    Joined:
    Apr 17, 2004
    Location:
    LA LA Land
    The United States Supreme Court recently limited warrantless car searches in Arizona v Gant, so take a look at that one too. It was a 2009 case.
     
    Last edited: Feb 24, 2010
  9. spdski

    spdski NRA Life Member CLM

    Messages:
    4,306
    Likes Received:
    0
    Joined:
    Sep 6, 2005
    That was in reference to search incident to arrest. That being said, under these circumstances, if you arrested for residue you would still be covered to search the car under Gant.
     
  10. lawman800

    lawman800 Juris Glocktor

    Messages:
    38,472
    Likes Received:
    118
    Joined:
    Apr 3, 2002
    Location:
    It just keeps getting better, don't it?
    Correct me if I am wrong, but search incident to arrest is what Gant limited in that you can't arrest someone to get into their car if you got nothing else (akin to the Chimel decision where you can't just arrest someone and walk them around to keep using the search incident to arrest), but if you have a legitimate arrest and you impound and do an inventory pursuant to your department policy, it's not within the purview of Gant.
     
  11. spdski

    spdski NRA Life Member CLM

    Messages:
    4,306
    Likes Received:
    0
    Joined:
    Sep 6, 2005
    I thought Gant barred searches of a car incident to arrest where you couldn't articulate that there might be evidence of the crime you arrested for (like DWLS).
     
  12. RonboF117

    RonboF117

    Messages:
    60
    Likes Received:
    6
    Joined:
    Apr 23, 2007
    Location:
    SoCal
    While the list is not exhaustive and you'll still need to put the pieces together; the following should point you in the right direction.

    The FLETC web site also has some good resources on this subject.

    ARIZONA v. GANT; No. 07–542. Argued October 7, 2008—Decided April 21, 2009

    New York v. Belton, 453 U. S. 454

    Chimel v. California, 395 U. S. 752

    Katz v. United States, 389 U. S. 347, 357

    Thornton v. United States, 541 U. S. 615, 632

    Knowles v. Iowa, 525 U. S. 113, 118

    Michigan v. Long, 463 U. S. 103, and United States v. Ross, 456 U. S. 798

    Weeks v. United States, 232 U. S. 383, 392

    United States v. Robinson, 414 U. S. 218, 230–234

    453 U. S., at 456

    United States v. Green, 324 F. 3d 375, 379

    United States v. Edwards, 242 F. 3d 928, 938

    United States v. Vasey, 834 F. 2d 782, 787

    United States v. Hrasky, 453 F. 3d 1099,

    United States v. Weaver, 433 F. 3d 1104, 1106

    United States v. White, 871 F. 2d 41, 44

    Preston v. United States, 376

    U. S. 364, 367–368

    United States v. Murphy, 221 Fed. Appx. 715, 717

    Hrasky, 453 F. 3d, at 1100

    United States v. Williams, 170 Fed. Appx. 399, 401

    United States v. Dorsey, 418 F. 3d 1038, 1041

    United States v. Osife, 398 F. 3d 1143, 1144

    United States v. Sumrall, 115 Fed. Appx. 22, 24
     
  13. lawman800

    lawman800 Juris Glocktor

    Messages:
    38,472
    Likes Received:
    118
    Joined:
    Apr 3, 2002
    Location:
    It just keeps getting better, don't it?
    Exactly. If you got nothing to search a car because you arrested for one thing but have suspicion of something unrelated, you can't just arrest the guy and use the search incident exception, but there's nothing forbidding the inventory search after you impound the car because the driver was arrested.
     
    Last edited: Feb 24, 2010
  14. Gangrel

    Gangrel

    Messages:
    1,865
    Likes Received:
    0
    Joined:
    Oct 12, 2007
    we're talking about a search based on probable cause here, though.. not incident to arrest
     
  15. kfbleich

    kfbleich Po-Po

    Messages:
    55
    Likes Received:
    0
    Joined:
    Dec 21, 2009
    Location:
    Right In The Middle
    Reference Wyoming v. Houghton 526 U.S. 295 (1999)

    Also, United States v. Ross 456 U.S. 798 (1982)

    In Ross, the USSC stated"

    "f probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search."

    The Wyoming case dealt with the search of a passenger's container (bag) during a probable cause search.

    This Federal Case Law still stands if I remember correctly...

    Regards
    KB
     
  16. RonboF117

    RonboF117

    Messages:
    60
    Likes Received:
    6
    Joined:
    Apr 23, 2007
    Location:
    SoCal
    Vehicle searches, as I see them, have 4-5 branches off the logic tree using "if - Then" criteria. Elements of these would include, RAS, PC, SIA, frisk vs pat of subject and vehicle, closed container vs locked container, pax or not, and actions of pax - to name a few.

    The discussion below touches on some of these elements.

    http://secondcircuitcivilrights.blogspot.com/2009/04/supreme-court-limits-warrantless.html

    WEDNESDAY, APRIL 22, 2009
    Supreme Court limits warrantless vehicle searches
    Sometimes the federal courts just get it wrong, even after the Supreme Court issues a ruling intended to clarify the issues. So the Supreme Court has to revisit to issue to set the federal courts straight. That happened this week. Moral of the story: Supreme Court decisions are what the Supreme Court says they are

    The case is Arizona v. Gant, decided on April 21. In Chimel v. California, 395 U.S. 752 (1969), the Supreme Court said that, upon arrest, the police may conduct a warrantless search in any area within your immediate control. Then, in Belton v. New York, 453 U.S. 454 (1981), the Supreme Court reached a similar holding in the context of warrantless vehicle searches. The idea is that the police have the right to search any area within the arrestee's reach in order to prevent him from grabbing a weapon or destroying evidence.

    Over the years, though, federal courts began interpreting Belton quite broadly, finding that the police can search any area within the arrestee's reach at the time of the arrest, even if at the time of the search the arrestee was nowhere near the search area. As Justice Stevens observes in Arizona v. Gant, the Belton precedent "has been widely understood to allow a vehicle search incident to the arrest of a recent occupant even if there is no possibility the arrestee could gain access to the vehicle at the time of the search." Moreover, the Supreme Court majority in Gant notes, "Justice Scalia has similarly noted that, although it is improbable that an arrestee could gain access to weapons stored in his vehicle after he has been handcuffed and secured in the backseat of a patrol car, cases allowing a search in this precise factual scenario ... are legion."

    So here is the law of police searches in the context of arrests, as set forth by the Supreme Court this week: the police may "search a vehicle incident to a recent occupant's arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search." The Court throws in another permissible search practice: "we also conclude that circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle." The second search practice was first proposed in a concurrence by Justice Scalia in Thornton v. United States, 541 U.S. 615 (2004). It is now the law of the land.

    So what about the fact that police agencies around the country have trained officers to seach vehicles on the basis of the courts' flawed interpretation of Supreme Court precedent? The Supreme Court is not about to alter its rulings on that basis. Justice Stevens writes, "we have never relied on stare decisis to justify the continuance of an unconstotitional police practice."
    Posted by Second Circuit Civil Rights Blog at 7:26 AM
     
    Last edited: Feb 24, 2010
  17. lawman800

    lawman800 Juris Glocktor

    Messages:
    38,472
    Likes Received:
    118
    Joined:
    Apr 3, 2002
    Location:
    It just keeps getting better, don't it?
  18. actionshooter10

    actionshooter10 CLM

    Messages:
    1,698
    Likes Received:
    35
    Joined:
    Dec 29, 2006
    Location:
    Texas
    Excellent post.

    Chimel had no limitations on search incident to arrest. Gant limits you if the driver/passenger has been pulled out of the car and no longer has access to area you want to search.

    None of cases above have any effect on an inventory because an inventory is not a search. The only reason to perform an inventory is to protect the owner's property and the department from liability associated with theft or false accusation.

    The difference between a search and an inventory is the intent to or expectation of finding contraband.