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Slate

I've seen several posts dealing with the legalities of searches conducted by law enforcement in various parts of the world. The following are the basics on how/why we can search. This is specific to California, but similar guidelines apply to almost every jurisdiction in the Country.

Incidental to arrest. When you are arrested you and the immediate area surrounding you can be searched. If you are inside of your house, we can search you entire house for additional PEOPLE for officer safety.

Probable Cause. PC are the facts known to a LEO that prove that a crime has been committed, at which time an arrest is eminent and incidental to arrest takes effect.

Search Warrant. A search warrant is the articulation of facts known by a LEO that is brought before a judge. A search warrant is, location and crime specific.

Hope it helps.

Consent Search. When asked for consent, it is your descision to give it or not. Once a consent search has begun, YOU have the right to stop the search.

Exigent circumstances. When certain articulatable facts are present that shows that a life is in danger, evidence could be lost, serious bodily injury could occur or any crime will continue without immediate interdiction, then entry into a dwelling and searching is okay.

Parole and Probation. Self explanatory.

Vehicle searches. Supreme court has ruled that obtaining a search warrant for a car is not nessecary due to the mobilty of the veh. However, barring any of the above circumstances, the officer must be able to justify the search.

 

Slightly Stoopid

As you know, when a teenager is pulled over, we are scared, very very very scared, i am sure that goes for adults as well...

When we are in the state of being so scared, and you tell us why you have the right to search, can we ask for a lawyor first, cause how would we know wether your reason is legitamat? You may be trying to trick us, afterall you do and try to trick us sometimes don't you?

An example:

Say i am the driver of a car load of teens.. We all look sober(alchaul sober), and we had nothing to drink. However, some of the passengers, and maybe the driver look stoned, and are acting funny, but you smell nothing, maybe some cologne or some recently sprayed air freshner, what do you do? Is that reasonable cause to search?? On a earlier post you said if we look like we are stoned or whatever, you can detain us.. i always thought it isn't a crime to be stoned(sounds silly, huh officer?

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Slate

QUOTE: by Slightly Stoopid. "i always thought it isn't a crime to be stoned(sounds silly, huh officer?"

Well actually it is a crime, (see 11550 H&S). However 11553 H&S exempts MJ as a controlled substance. The problem is that a Drug Recognition Expert must identify what type of substance you are on, thus making the detention legal until he can determine it is MJ only. BTW it is zero tolorence for juveniles.

We all know people get tense and do wierd stuff when they are stopped by police, no biggy. Asking for a lawyer only applies when you are being read your rights though. On a traffic stop the officer should tell you the reason for the stop, but if he doesn't, simply ask the officer in a courteous manner, why? I can't emphasize enough though, you must do it tactfully and when the opportunity presents itslef.

Trick people???? WHAT.. me....NEVER....(as I walk away whistling)

Slate

A follow up to vehicle searches since that also seem to be an issue. But first let me give two definitions.

Reasonable Suspicion=circumstances that tend show the likelyhood that a crime is (or has) occured. RS leads officers to Probable Cause.

Probable Cause=certain facts that prove that a crime has occured.

An officer is NOT required to have probable cause to conduct a detention, only reasonable suspicion. See Terry vs US.

The US Supreme Court has ruled that a persons expectation of privacy is lowered once they are in a vehicle. see Carroll v US.

During a regular traffic stop, if reasonable suspicion arises (ie. the aroma of MJ is smelled in the veh), it is no longer a traffic stop, but rather a "Terry" (or investigative) stop. Due to the change in facts known to the officer, he can then legally search you car without a search warrant. see US v Dewitt and US v Hardy.

Megaweapon

In a consent search, cant you also designate an area to be searched?

Thanks for the post... its always good to know that kinda info.

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Slate

Megaweapon,
Yes you can designate specifically where a LEO (in CA) can search. But I'm sure you know that's a slippery slope. I would suggest either yes or no.

Nickel

Say someone reports me for ...? I don't know - some non-marijuana related crime that I am supposedly committing in my home. So a LEO obtains a search warrant for that specific location and crime. What happens if a search is done of my home and turns up no evidence of this crime but turns up a 1/2oz. of marijuana. What happens? 50 MJ plants... what happens? In the case of 50 MJ plants, would you have to get another search warrant or would you just take the rest of the day off and hang at my place

Slate

RadioCrowe,
Normally judges will not sign a warrant on 1 persons testimony (even one LEO). They like to see three independent corroborative sources of evidence. The exception is a Hobbs warrant (Hobbs v US), where one person's word hinges on the entire case/ search warrant. So we'll hypothetically say they got a Hobbs warrant for your house and they are searching for guns.

Upon entry into your house, they will search everywhere and anywhere specified by the warrant and where guns might be. During their search they come across 50lbs of weed. In order for them to then actively search for more weed, then yes a new warrant is needed. But the 50lbs they have already found is fair game.

**Caution**Many states/jurisdictions have adopted an Extension Clause where they would not need a second warrant. They would simply articulate the events of the extended search in the "search warrant return" to the judge.

Slightly Stoopid

It is good you told me all of this, i thought i was pretty safe from stuff like that, but it goes to show that there are many ways cops can get around things.