A couple of quick Fourth Amendment items via Liberty and Justice for Y'all:
First, the US 5th Circuit Court of Appeals ruled that when a driver gave DPS troopers consent to search his vehicle, they were justified in taking out a screwdriver and dismantling his car speakers on the side of the road to look for drugs.
Also from LJ4Y we get a good roundup of discussions on a SCOTUS case, City of Ontario v. Quon, an electronic privacy case in which oral arguments were heard this week. My own views on the degradation of the Fourth Amendment were well stated by Jamie Spencer over at the new Affirmative Links group criminal defense blog, so I'll refer readers to his essay rather than replicate his fine efforts.
ASIDE: FWIW, this is officially the 5,000th post on Grits for Breakfast since the blog was launched in October 2004. Thanks for reading.
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37 comments:
Another excellent reason to NEVER, EVER consent to search of your vehicle. Just cause some dumbass with a badge and gun says he can get a search warrant, does not mean he can or will. If they threaten to detain, ask them if you are under arrest. If dumbass says "no," get in your car and leave immediately.
Excellent post. So many of the ler's are really ate up with the dumpass and think they are all powerful. Even a uniform can't make idiot - unidiot. They hire anything that walk these days. NEVER give permission to a search!
Never give consent to search anything and never talk to a police officer!
Texas law only requires you to talk to a cop when he ask for your name, date of birth and address. All that information is on your drivers license, so there's no need to say anything to a police officer!
Actually there is two times you would need to say something to a cop, "no I don't consent to a search" and "am I free to go?"
Keep up the great work, Scott. Grits is an invaluable resource for many of us in Texas and beyond.
"ASIDE: FWIW, this is officially the 5,000th post on Grits for Breakfast since the blog was launched in October 2004. Thanks for reading."
Thanks for writing!:~)
Well Charlie O and 1:35.......it looks like the dumbass here was the crook! Keep on trying to get your message out there.
As per grits' usualy modus operendi, he leaves out important facts:
"While conducting the consent search, the officers noticed that the screws on the speaker cover in the truck's cab looked as if they had recently been removed and replaced. They proceeded to removed the speaker cover and find a large amount of cocaine hidden behind."
"While conducting the consent search, the officers noticed that the screws on the speaker cover in the truck's cab looked as if they had recently been removed and replaced. They proceeded to removed the speaker cover and find a large amount of cocaine hidden behind."
Now that's a good reason not to let an officer search your car! I always stand up to those guys when I'm hauling a kilo cocaine around in my Kia Rio.
Hey Grits, we appreciate you for all that you've done for us over the years, we look forward to many more.
Blog on and we'll follow. Thanks.
Do not consent to let the police search your car. If they have the probable cause or can creatively come up with some shady probable cause they will search it anyway. More law enforcement abuse and before all you po-po come after these comments, you know damn well they are true!
Good police work.....PERIOD!
As far as I am concerned your work and posts are indespensible and you do it exceptionally well. My thanks to you!
Anonymous said...
Good police work.....PERIOD!
4/22/2010 10:20:00 PM
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SHADY POLICE WORK.....PERIOD! IDIOT
Anyone that says that a police officer, who asks to search and vehicle and does, finds cocaine, successfully prosecutes the offender and calls it "shady" police work is either an idiot or a criminal themselves.
What is "shady" about asking for consent? A person has the right to waive their 4th amendment rights.
I am sorry, but I would not want anyone who thinks that police officers are "dumbasses" just for doing the job that they are paid to do is idiotic.
For those "brave souls" who sit behind their keyboard and scoff and police officers who did a very good job in this case I hope that you are never a victim of a crime.
I personally think that if consent were disallowed, police officers should ride around with a judge in their passenger side of their vehicle so that there can be on sight judicial review. Then what would you folks say?
What would make a police officer a good police officer to you folks? One that doesn't find drugs?
Man oh man the stupidity.... The stupidity.... I just get so sick of people, who have never risked their lives, or never lived with an ounce of integrity besmirching honorable men and defending drug runners.
What jerks... There I've said it and I am willing to defend what I've said. Bring it jerkwads!
By the way, let me qualify my statement. I in no way have a problem with defense attorney's defending people accused of a crime. That is a very fundamental and necessary part of our criminal justice system.
However for the folks in this strain without a client to defend: Shooting down consent itself? What kind of people would refuse a criminal his right to screw himself?
Sometimes I think common sense is not to common anymore. If the idiot gives consent don't try and change good case law that says he can do that....
By the way Charlie O and Boyness... Can you tell me what you would have done if you were charged with drug interdiction duties? I'd like to hear it from the experts....
Please tell us dumb cops how to get criminals off of the street without offending your idea of what the 4th Amendment should be?
I would like a description of the "perfect cop" in your opinion.
I will check back in few days... I can't wait for a response on the "perfect cop" part lol....
Cops are basically regular guys, just a little more aggressive. Certainly they aren't dumb or really very different from the rest of us.
Unfortunately your job has a dirty side to it.
You probably are already familiar with some of the solutions on how society can function without people getting their rights violated as much. Legalizing drugs is one option.
Or here is another idea, just don't do car searches. There are plenty of arrests anyway, and not enough space in the prison to hold them. So there you go, two ideas for u.
WOW MATTHEW...bet you dont post under anonymous anymore huh? The issues raised on this board go much farther than the dismantled stereo system discussed herein.
I would not be charged with drug interdiction duties but I do not support profiling or "pretending" like a dog hit on a truck just so I could search it.
Obviously you have never been on the business end of a search that never should have happened...I have. They didn't find anything because THERE WASNT ANYTHING yet I was put through two hours of hell while they went through everything.
I just thank God they did not plant something to justify this flagrant violation of my rights.
Well Boyness, you seemed to have not followed your own advice considering you were put through "two hours of hell" as you say.
Yes, I've been there before. Senior year in high school. Searched my car, found nothing. It didn't cause me to have any issues today.
BTW Boyness, what sort of litigation did you file as a result of this "flagrant violation of my rights?"
Pirate....Until drugs are legal, I think I will continue to search cars. :)
FWIW, a few years back the Texas Lege passed a bill requiring that consent be either written or recorded, but Gov. Perry vetoed it. (The next session he vetoed a bill that would have required agencies to have a policy on consent searches.)
Matthew, I understand your point but you're focused only on the guilty few who the tactic discovers. Consent searches are fishing expeditions that usually turn up nothing, so in most cases you've bullied folks out of their rights for no good reason at all.
Also, when you find drugs in a consent search you haven't reduced the number of "victims," just disappointed a customer. You've got an overblown sense of the importance and/or effectiveness of that task.
Bottom line: If you are charged with drug interdiction and can't think of any better approach than to drive up and down the highway hoping you'll randomly stumble onto dope that someone consents to you finding, you're wasting your time and the taxpayers' money.
Anonymous said...
Well Boyness, you seemed to have not followed your own advice considering you were put through "two hours of hell" as you say.
Yes, I've been there before. Senior year in high school. Searched my car, found nothing. It didn't cause me to have any issues today.
BTW Boyness, what sort of litigation did you file as a result of this "flagrant violation of my rights?"
Pirate....Until drugs are legal, I think I will continue to search cars. :)
4/25/2010 02:55:00 PM
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Here we go again. Another anonymous coward, an uptight LEO who DEMANDS the public embrace his crock of shit.
How in the hell do you file litigation, dumbass, when a trooper and two constables where in on it?
And FYI dumbass, I DID follow my own advice. I DID NOT CONSENT...they PRETENDED like the dog "hit" on my car as there justification for searching it. ONCE AGAIN...IDIOT...the dog COULD NOT HAVE ALERTED because there was NOTHING THERE!
You are part of whats wrong in this pompous ass state.
Grits, I can see that you are more on the legalization view of the policy.
I can respect that.
However one thing that you and some of the other folks in here should be aware of is that when you are given a (Legal and Lawful) duty or a task by you superior and you are a police officer, you must follow it.
State Troopers in Texas are tasked with drug interdiction duties. They are instructed to perform this duty in accordance with the law and within the boundaries of personal integrity. Asking for consent is lawful and an accepted law enforcement practice. State Troopers video tape their stops. No problem there if I read your posts correctly.
When I was on patrol I asked for consent in all of my searches whether I had probable cause or not unless they did something to get immediately arrested or had an outstanding arrest warrant. I thought I was being polite. I took lots of not so great folks off of the street that way. I also never received a complaint due to a search.
Now in the case of the dismantling of the stereo for the purposes of drug interdiction (which from the report of the troopers they could tell that the stereo had already been dismantled previously, which is a great clue when you suspect someone of concealing contraband, but not always a definite) do you believe that the TROOPERS were wrong or that the LAW is wrong?
I don't know if you are in the same boat with Charlie O who basically generalized police as (and I quote), "some dumbass with a badge" when in this case the troopers obviously followed the law and common sense.
Or in the case of Boyness who called this (and I quote again), "SHADY POLICE WORK.....PERIOD!" When again, even the Supreme Court agreed that this was a lawful search and seizure.
I am not saying that the law is right or wrong. All I am saying that it IS THE LAW in our country.
If it is the law, who is the (as the most honorable and eloquent Charlie O put it) "dumbass" in consent searches?
Do you think that police should end consent searches entirely?
Should police be required to obtain a warrant on ALL searches (no exigent circumstance AT ALL)?
Can the police do ANYTHING right in your view (this one is a question for everybody in this strain).
It's okay to respond, I won't curse anyone out.
"even the Supreme Court agreed that this was a lawful search and seizure."
And everyone knows they'd never approve of anything shady!
Bottom line, I don't believe in consent searches at traffic stop without reasonable suspicion (which would then allow you to search without a warrant under current caselaw). IMO the SCOTUS traffic stop exceptions are wrong - legally and morally - elevating pragmatism over the plain text of the 4th Amendment. Ditto for many so-called "exigent circumstances," which is copspeak for "situations in which I don't have to obey the Constitution."
As for legalization, that has nothing to do with it. If you listen to DPS, DEA, etc., they'll say up front that the mules don't lead back upstream to bigwigs - that they're small potatoes and busting them doesn't do much. LEs do drug interdiction on highways for one reason only: Hoping for asset forfeiture funds. It's sure not because it's ever made a damn bit of difference in the drug war!
I don't think it makes you a "dumbass" to engage in such a massive waste of your time and taxpayers' money, but it doesn't make you a rocket scientist, either.
LOL Grits.
You know, you slay me.
It's almost like some lowly policeman got up one morning and created the term, "exigent circumstance."
Well, I am actually an investigator now and do not conduct traffic stops as a matter of course, so I am sure that I am wasting tax payer money in some other creative ways in your opinion.
I agree that busting low level mules does not do much. That is why there has been a shift in DPS policy that when a large drug or money seizure occurs, DPS narcotics in actually notified and they conduct an investigation in order to climb the ladder to the drug mule's suppliers.
I must correct you on one point there Grits.
I actually have to have PROBABLE CAUSE to search a vehicle without consent, not reasonable suspicion unless it is an inventory search.
I believe that case law kinda' prohibits asking for consent to search a car "just because I wanted too." I actually have to have reasonable suspicion for that.
No, that is not the way it works. You have to have some sort of reason for asking them. It doesn't have to be an extremely definitive reason but it has to be something. It could be that they are answering questions with questions, sweating profusely, looking around nervously, passenger and driver are giving different stories about where they have been, et cetera.
Every traffic stop warrants its own investigation. Is this person a good citizen (that committed a minor traffic infraction)? Is this person intoxicated? Is this person a hostile threat? Is this person a drug runner?
We look at numerous factors and speak with people that we stop. During those conversations we sometimes come across someone who is actively trying to conceal a crime.
When we suspect someone is attempting to conceal a crime, we ask for consent.
There, rocket science.
Have a great day.
First it is up to every U.S. citizen to know the law and their rights. Secondly,and this is the more difficult part, regardless if you are conceling something or not, never ever give a cop consent to search your vehicle. The difficulty of this is it automatically raises contempt with the gum shoe;it isn't then just left alone. Often not consenting to a search leads to more aggressive questioning and harassment,which is best handled with asking the question; "why are you detaining me"?
Yes it does make sense that cops use traffic stops as an opportunity for "investigation", however it shouldn't turn into an interragation. A traffic stop should be brief, respectful, and in no way turn into agressive harrasment and being detained,(unless of course you have a warrent out for your arrest). Dening consent to search your vehicle should be no different than when exercises your maranda rights to not answer any questions, only in the case of a traffic stop as long as there is no probable cause, or warrents the person signs their sitation and drives off.
Today we see more and more of our rights as citizens being infringed upon and underminded, often the excuse is because of issues and policies steaming from the War on Drugs or 9/11; which is really weak since we should never allow "innocent until proven guilty" to be underminded...I didn't hijack and fly 4 plans into buildings,nor am I a drug runner...I shouldn't be harrassed for not consenting to a search, and I certainly shouldn't have to consent to prove I'm innocent . A loose speaker screw, boardering mexico,race, or driving I-10 shouldn't be reason for suspicion and in no way is any of this "probable cause".
By the way [inflecting humour] there are two screws missing from a speaker cover in my car. Guess I better make haste and get that taken care of since I'll be leaving Del Rio via U.S.90 and taking I-10 to California to visit family...and I like to speed, ho ho!!!
Machine,
If the cops threaten or harass in order to obtain "consent" it is not "consent" and any evidence from a search like that can be suppressed. That is the remedy for situations like that.
The police in this case just asked if they could search the vehicle and the suspect said that they could. They found contraband and he went to jail.
Your response is well thought out and not quite so anti-police (although the sentiment may be there) as many of the posters on this strain. I appreciate that.
Have a great day,
Matthew
This board is not so much anti-cop as it is anti-idiot. I actually hold the cops in very high regard and expect professional, compassionate and honest law enforcement. I realize the cop that searched my car was wrong and shady as hell and I also realize that not ALL officers do that but I am also no fool and am sure there are plenty of others who follow in his stead.
Most cops who come on Grits are so busy being defensive of there brethren that they miss the real picture. In case you missed the issue of cops searching cars pisses me off and for damn good reason. Instead of being mad at me, you should be mad at the dumb-ass DPS trooper and the constable wannabes who jaded me.
I'm not mad at you Boyness. I try not to judge until I hear both sides of the story.
I deal with complaints against public servants every day in my job. If I immediately took everything as true, many good government officials would be fired. Although I have confirmed on many complaints that shocked me.
I would have to know your history with the police.
Usually if someone is constantly being contacted or searched by the police there is an issue there. I don't entirely know if it is their (the police) issue or your issue. Most of the time it is a two sided conflict. Just in my experience. I am not saying that it is true in your case. You are the only one with an answer to that.
I just think that there is a bit of a bias in some of these strains. I just wish to be the reasonable voice of the law enforcement side. Also, I never have a normal reason to use the term "jerkwads" in every day conversation. It is such a descriptive word lol.
Have a good evening Boyness
I have -0- law enforcement contacts with this exception. Contacts would be defined as conversation other than social/trivial. This is, once again, part of the over-all problem. Why would my background with the police make any difference.
The state trooper pulled me over, supposedly for crossing the center line, asked to search my car and I said no. After a diatribe which included veiled threats, here come some supposed drug dog and two constables.
The dog walked my car twice and NEVER alerted. They called the dog back over, bounced a little red ball off my trunk, the dog got excited and then they informed me that the dog had hit on drugs.
THERE WERE NO DRUGS...I DONT DO DRUGS. THE DOG NEVER REALLY HIT ON MY CAR. I DONT HAVE A BACKGROUND AND EVEN IF I DID WHY WOULD IT MATTER. THE DOG OBVIOUSLY HAD ISSUES...THE HANDLERS...WELL. AND THE TROOPER, HE JUST WANTED A BIG OLE DRUG BUST FORGET MY RIGHTS JUST GO AHEAD WITH THE FACADE AND IF ANYTHING IS SAID...NO ONE WILL KNOW.
I FORGOT TO MENTION ONE THING. WHEN THEY FINISHED WITH MY CAR I SAW THE TROOPER IN THE TRUNK OF HIS CAR REMOVING THE VIDEO TAPE FROM WHAT I ASSUME IS HIS DASHBOARD CAMERA.
THESE IDIOTS WERE WRONG...PLAIN PURE AND SIMPLE. THEY VIOLATED MY RIGHTS, FABRICATED THIS DAMN DOG HIT AND MADE A MESS OF MY CAR. I SHOULD HAVE SUED THE HELL OUT OF THEM BUT I COULD NOT FIND A LAWYER WHO WOULD LISTEN!
I cannot let this go. My background is none of the police's business. When someone is driving there car and is pulled over by the police, the burden is on the police, NOT ME.
I'm in second year law at UT and you can bet your ass that should this happen again, the results will NOT be the same.
Boyness, this incident apparently has deeply affected you to the point where you are not actually able to move past it in your life.
Did you file a complaint against the trooper or the constables? This could have found you the relief that you had sought. There is a process for complaining against a DPS Officer that has been explained on the DPS website for the past six years now.
The fact that you are in law school is a good thing. You may be able to help others that may have gotten an unfair shake from the government.
However let me share my experience with you. Often times I have met defense attorneys who actually had an active disdain for law enforcement (to be fair I have also seen this vice versa). During trials they would often berate law enforcement officers on the stand with little result. Such prejudices can keep you from being objective and formulating an actual viable defense. Sometimes the jury doesn't look at the substance of evidence but rather the form in which it is presented.
Such prejudices cloud your judgement.
I have several friends that are defense attorneys and I have found that they are able to formulate some of the best defenses I have ever seen.
Heck, if you make friends with law enforcement you might even get some assistance in the following areas:
1. Assistance in surveying a crime scene in preparation for a trial.
2. Technical assistance in finding out how criminal investigations are conducted in a certain jurisdiction (so you can established if these investigations were done in accordance with established, federal, state and local standards. It helps to know if a step was skipped somewhere. Reasonable doubt, that's all you have to establish).
3. And if you have a friend in law enforcement that really trusts you; you might be able to get information in a few seconds that would take one of your colleagues a week with a subpoena.
So my best advise is: prejudice against ALL POLICE will hurt you as a criminal defense attorney. Being a defense attorney is not about making friends but it is not productive to make enemies of law enforcement officers either.
I hope that you are able to move past this for the sake of your future career.
Matthew
I am not prejudiced against all law enforcement officers, I am not that stupid. I am against lazy cops who lie and create drama where none is needed. Jaded? YES! But only by the Trooper and Constables who screwed me and they know whom they are.
I had told my juvenile child several times to not consent to a search. Police here are profiling young drivers and pulling them over for “turned to far left when turning right” “Your tires are on the white line at an intersection”. Yes tires were on the white line because I stopped instead of running a yellow light.
My child gets stopped and police ask to search. My child says no as that is what my Dad said to do. Cop gets in his face and yells about how my child is hiding something and he is going to jail. This goes on for several minutes as a gun totting official scared the crap out of my minor child.
Is this proper behavior for exercising your 4th amendment right?
This is a conclusion of my previous post.
My teenage child and three of his friends decide to sneak out of the house and go for a road trip. They decided they wanted to go to the beach at one in the morning. Not the sharpest tacks in the box.
So about 50 miles from home they hit an armadillo. This causes the skirt under the right front fender to rip and puts a dent in the lower front. After examining the damage they have to cut away the skirt. So they pull in a car wash and cut this skirt so the wheel can move freely. At this moment they decide the road trip is a really bad idea and pull out to go back home.
As they turn out of the car wash a local police officer turns on his lights. The officer approaches the car and asks for license and insurance. My child complies with the request. License is good and insurance is up to date. The officer comes back and asks my son to step out of the car. At this time two additional police units show up. My son steps out and the officer asks for permission to search the car. My child response is “my dad tells me to not allow this procedure so I do not consent”. This comment causes the officer to become real mad and he tells my child “well now I will just get my dog and search” The other kids are then told to get out of the car. They comply. They are set on a curb and one of the additional officers that showed up proceeds to ask this kids questions.
At this time the other two officers open all the doors on the car and start to shine their flashlights on the interior of the car. My child asks “why are you doing that I did not consent to a search”. At which time the officer in charge said “we are not touching anything and we can look if we want.” My child should have remanded silent and not asked.
Back on the curb the third officer (the nice one according to the kids) tells the kids that if they have a joint or a little weed to fest up and no one will go to jail. One of the kids speaks up and tells the officer that yes he has some weed and shows the officer where it is. When stopped this kid had put his weed under the passenger front seat (he was riding in the back seat). After finding this stash they place hand cuffs on the kid and place him under arrest. No surprise there.
Now the other officers have the drug dog ready to go. The dog keeps going to the front of the car as the armadillo blood is still on the fender. The police officer tells my child that this is an alert and they are going to search the car. At this time the dog jumps in the car and proceeds to sniff around. Front seat back seat all over the car interior. The officers then remove the dog and proceed to open any containers in the car back seat. This included video game cases, to go cups and a small travel bag throwing these items all over. Not finding anything else they proceed to pull out the back seats damaging the seats and clamps that hold them. Not discovering anything they open the trunk and pull out the subs ripping the wires from the interior. Not satisfied they pull out the cars tool kit and scatter the tools in the parking lot. (Most of the tools never made it back in the car). After causing damage to this new car they are thru with enforcing their search.
Part two
Now the officers go to the back of the car and pour out the weed they originally were given on the trunk. They proceed to place a small amount in a baggie as evidence. Then the officer brushed the remaining pot in his hand and throws it in the back seat of the car. My child is then placed under arrest with the original child for procession under 2 oz. (the original bag contained about 7 or 8 grams according to the kid that had bought the dope)
They decide that the other two kids can drive my child’s car back home. Both of these kids are 16 and they are 50 miles from home. They car does not belong to them and will not be insured on this trip back home. In addition there is pot all over the interior and it is now 3:30 am. I am glad these kids made it home without being stopped in my car without insurance. If they had had a wreck I cannot imagine what could have transpired.
Now these kids show up and wake me up at 5:45 am with this story. Needless to say I am upset and angry. I drive down to the jail and I am able to bail my kid out. He is in trouble, I am selling the car and he will pay a heavy price for this infraction.
Here are my issues though,
From the time my child was in kindergarten police officers came to his school with the message trust the badge, trust the uniform. I really doubt any of these kids will ever believe or trust another cop.
Why did the police officers think tearing this car apart was good law enforcement? They had been given the stash; the kid said it was his. (I know this car could have been filled with heroin or cocaine most mules are 17 year old suburban white kids).
The kids will be punished by the laws on the books by the judicial system.
I am concerned as citizens we allow police officers to carry weapons and enforce the laws that we as citizens agree to. No other citizen would be allowed to act in this way. Is this behavior normal?
Did my son expressing his 4th amendment rights anger these officers?
I inspected the car that morning and immediately went to the car wash as pot and dog hair was all over the interior. The back seats are trashed, the trunk tools are missing and the car has that big armadillo dent. The sub no longer works and the speaker wiring is damaged.
So I have hired an attorney and we will let justice run its course. The sad thing is we as citizens have no recourse against these unprofessional police officers we entrust to protect us. I am sure that someone else will suffer from these officers and can only trust karma to render true justice.
Next time I am called to support some police function I will certainly decline. As my son and his friends now believe I will never trust or believe a police officer again.
I will certainly make an excellent juror for the defense next time I serve on a jury.
Sorry...I just have to leave something about the last post about the mother who's son got in trouble with a few friends.
So just to sum it up. Your perfect son, took your car without you knowing it for a little joy ride. Then got stopped for one reason or another, then got caught with marijuana. And you are questioning whether the search was valid. I don't know how it is over there in Texas, but as soon as the one kid said he had drugs in the car all bets are off. No need for a dog or consent after that.
Might want to be a little more concerned with your sone getting sneaking out of the house with your car, and having marijuana on/with him.
Just my two cents
I don’t believe I ever said my child was perfect. My child snuck out took his car and yes went for what we would call a joy ride. My child also got caught breaking the law by having pot in the car. No argument there.
But does that mean that police officers can trash the car, throw the car tools in the parking lot, break the backseat brackets, rip the wiring out and sub boxes? Does this allow them to throw pot back in the car? If as a society we are more concerned that a kid got caught with pot verses police officer’s behaving as if the laws do not apply to them where does that put society.
My child is currently being punished at home. My child will also answer to the current justice for this crime and I still believe these are police officers who give the badge a bad name.
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