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Niteshift

Making any difference to a police officer doing their job properly, is not the reson an Attorney is hired

Once again, in your rush to try to "prove me wrong", you failed to look at what was said:


jlong said: I was told this is the point when the cop thinks very hard about my rights and I have good reason to believe it's true.

My response, which quoted him and was directed to that remark, was about the fact that saying you have an attorney doesn't make a difference to me (or most cops) about the outcome or the events. It had NOTHING to do with whether or not an attorney has any value to you for court purposes, nor did I say it did.

If you must continue this campaign to try to find errors in something I say, please make it about what I actually said.

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Shonday

All this over a little green plant.

smoking_guru

Back to a topic stated a few pages ago...

I live in Canada, but I'm going to assume the laws are somewhat similar(?).

What dose a Police Officer need to search you? A Warant, or just a "hunch"? Or something inbetween.

fight4rights

I don't know about Canada, but here in the U.S. the officer needs a warrant, or probable cause. If the officer has a warrant, which must be obtained from a court (he wouldn't have one if he pulled you over for speeding or something,) always ask to see it because they might lie about it. Probable cause is more tricky, but it can be something like he smells marijuana, or sees some. Maybe you are acting like you are high, he could probably search you. They can call in dogs at a traffic stop and if the dog signals that there are drugs in the car, he can search. And remember, the system is not perfect, a cop might perform an illegal search, so as troublemaker has stated, best not to call attention to yourself in anyway. Keep in mind that I am no expert, and this is for the U.S. You should really read your constitution (I'm guessing that you do have one.) Do a search for it.

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phuzz01

Actually, in my state, there are 8 exceptions to the requirement of a search warrant. They are as follows:

1. Consent. I don't need probable cause or a warrant if I have consent.

2. Plain view. If I am legally present, see something in plain view, and its criminal nature is immediately apparent, I can seize it without a warrant. It may also give me probable cause for further searches, whether with a warrant or under one of the other exceptions.

3. Exigent circumstances. I do need probable cause, but I do not need a warrant. Exigent circumstances would occur, for example, if I can articulate that it is likely that evidence will be destroyed, suspects will not be caught, or the public will be in danger if I take the time to get a warrant.

4. Terry stop/pat frisk. I need reasonable suspicion to believe that you might have a weapon, and the search is limited to a pat-down for items that feel like they might be weapons. There is also a "vehicle pat frisk," which allows me to search areas in your vehicle where you might have stashed a weapon as you were getting stopped. Again, you need reasonable suspicion of weapons.

5. Inventory. If I arrest you subsequent to a motor vehicle stop, my department's policy says that I tow your vehicle. It also says that prior to towing your vehicle, I will inventory the contents of your vehicle (including the contents of the trunk and closed containers) in order to protect myself, the department, and the tow company from liability. I do not need probable cause or a warrant.

6. Search incident to arrest. If I make a custodial arrest (i.e. put you in handcuffs vs. just giving you a summons), I can search your person and any areas in your vehicle that are within your wingspan in the vehicle (which is usually interpreted as the passenger compartment). I do not need probable cause or a warrant.

7. Administrative search. This is stuff like school administrators searching students and things like that. I do not use this kind of search, and I don't really keep up on all the case law about it, but you do not need a warrant.

8. Booking search. When I bring you back to the station for booking, the law allows another search of your person incident to arrest, including for example searching your wallet for ID if there is some question as to who you are. No need for probable cause or a warrant.


Interesting note for you NH residents out there. The other 49 states in the country allow for a search of your vehicle without a warrant if the officer has probable cause under the federal case Carroll v. US. This is known as the motor vehicle exception, and the logic behind it is that because of the mobility of a vehicle, there is pretty much automatically exigent circumstances. The NH supreme court has declared in State v. Sterndale that the simple fact that a vehicle is mobile and evidence is more easily taken away and destroyed does not rise to the level of exigent circumstances. Therefore, in NH, there is no automobile exception, and we are required to either get a warrant, or use one of the other exceptions outlined above.

Additionally, in the other 49 states, the search of the passenger compartment of your vehicle incident to arrest is acceptable even after your car has been impounded and is back at the station under the federal case NY v. Belton. But, in the NH case of State v. Sterndale, the NH supreme court ruled that the search incident to arrest is designed for officer safety purposes, and once the suspect is handcuffed and in the back of your cruiser, there is no longer an officer safety issue as far as weapons in the vehicle. So again, NH law is stricter of more limiting than federal search and seizure law.

 

Mamabudz

Phuzz:

Excellent response, thank you!

It is important to understand that when you consent to a search, you have given up the right to privacy. Since you may not know what someone else dropped in you car (friend, acquaintance, hitchhiker) you may put yourself at risk for having something in your car you don't expect to be there. In addition, you may have something you don't realize is against the law in your car.

Just some things to keep in mind when you "consent." Will you incriminate yourself?

If Phuzz comes to your house and is at the door, and he sees a Bong on your dining room table -- he can seize it without a warrant.

Do keep your private things PRIVATE. Most Police officers do not want to make trouble for otherwise law-abiding citizens. And more cops like Phuzz are learning that Stonerz aren't disobedient useless drop-outs. But please make it easier for our LEOs to "look the other way" by keeping your paraphrenalia tucked away when not in use, and do put it out of site before answering the door. It just makes sense.

Hugz,

Mama Budz

fight4rights

Phuzz01, you said that in the 49 other states the cop can search your car without consent . Do you mean if the person is getting arrested? Can a cop just search your car when they pull you over? Please clarify.

Also I don't understand these paraphenalia laws. My friend said he knew someone who got pulled over by the cops when he had a new, unused roach clip. The cop seized it and took it to the lab for testing. That seems unreasonable to because he had no way of knowing what the clip had been used for, (which was nothing.) Can a cop take something he thinks might have been used for marijuana? How can he tell that a bong wasn't used for tobacco or a legal herb (if he hasn't smelt it)? Can he just take it anyway?

phuzz01

Federal caselaw (Carroll v. US) says that if a police officer has probable cause to search your vehicle, he/she can do so without your consent or a warrant, because the mobile nature of a vehicle creates exigent circumstances that evidence will be destroyed if the police officer waits until he has a warrant. This is known as the automobile exception. He does not have to arrest you to do this.

Paraphenalia laws vary widely from state to state. Some states say that having items that are commonly used for controlled drugs (such as bongs, roach clips, etc.) is illegal even if there is not residue on them. My state does not have a paraphenalia law at all. If an item has marijuana residue on it, you are guilty of possession of the minute quantity of drug itself. If it does not have residue on it, then you are not guilty of anything. If I have probable cause that something has marijuana residue on it or in it, I can seize it and send it to the lab. So far, I have yet to run across a bong that has not had marijuana residue in it. So, it is pretty easy to argue that based on my experience, bongs are used to smoke marijuana.