[Vision2020] And From Moscow We Have . . .

Sat May 23 15:09:02 PDT 2009

If what you are claiming is true, that simply exiting a vehicle and locking
it during a traffic stop, voids the legal right of law enforcement to
conduct a warrantless search, forcing them to obtain a warrant, when
probable cause is discovered during a traffic stop, such as in the traffic
stop for speeding in Illinois v. Cabbales, which after a drug dog alerted,
resulted in a warrantless search that was upheld by the US Supreme court,
then how easy it is to block warrantless vehicle searches!  It would seem
this tactic would be in widespread use to complicate vehicle searches.

But based on my reading on Arizona v. Gant and Illinois v. Caballes, and the
different situations they cover, we appear to be talking past each other, or
I don't understand the laws (likely).

You did not respond to or refute the quote, from
apublicdefender.com(towards the bottom of this post), that explicitly
stated, unless I read
this wrong, that Arizona v. Gant does not ban warrantless vehicle searches
for traffic stops.  A quote from Justice Scalia relating to Arizona v. Gant
relates to this discussion.

Also, as far as I have been able to determine, a driver locking a vehicle
during a traffic stop, while a discouragement to law enforcement entering
the vehicle, does not legally create a situation where a warrant must be
obtained to search the vehicle, when probable cause is present, such as drug
dog alerts to the vehicle in Illinois v. Cabbales during a traffic stop for
speeding.  Arizona v. Gant ruled that a warrant must be obtained to search a
vehicle in the situation in the specifics of that case (very different than
in Illinois v Cabbales, which is why I explicitly asked for a
source regarding whether the Illinois v. Cabbales ruling has been
overturned).  Whether the vehicle was locked or not I don't think is
critical.  Even if the vehicle was unlocked, doors swinging open, a warrant
still must be obtained, if my understanding of Arizona v. Gant is correct.
I clarify more on Arizona v. Gant and Illinois v. Cabbales at the bottom of
this post.

If you are correct, that stepping out of a vehicle and locking it (with
modern vehicles remote controls can do this for all doors, trunk etc.,
quickly) immediately changes a situation where law enforcement has legal
right to conduct a warrantless search of the vehicle with probable cause
(drug dogs alerting, for example) during a traffic stop, then warrantless
searches of vehicles during traffic stops can be blocked easily.  But I
can't find any reference to a law, or even advice from a "protect your
rights" website, that explicitly states that exiting and locking a vehicle
will force law enforcement to obtain a warrant (even when the vehicle is
unoccupied) to conduct a search during a traffic stop when probable cause is
present.  Some of the "protect your rights" websites do recommend locking a
vehicle during a traffic stop, but none I have read make it clear that this
act will force law enforcement to obtain a warrant.  Can you can source the
court case that explicitly supports your claim?  I don't think Arizona v.
Gant covers the same situation as Illinois v. Cabbales.

I just found a source that addressed a locked car being subject to a legal
warrantless search by law enforcement.  This source supports my assumption
that force may be used to enter the vehicle in this situation if locked,
even if the vehicle is not occupied, though the law may have changed since
this information was written.  However, it still may be good advice to lock
a vehicle during a traffic stop, given it may discourage law enforcement or
be useful in an appeal if they break in, even if they have the legal right
to use force to search:

http://www.jus.state.nc.us/NCJA/legjan95.htm

>From website above:

OK - you're thinking, "That's fine and dandy, but what does it really mean
to me, a working law enforcement officer in North Carolina?" Hey, I'm glad
you asked, because *Isleib* (building on *Carroll* and other cases) means
this:

1. You may approach any vehicle parked on public property (city street,
highway, etc.) or on a public vehicular area (any property generally open to
and used by the public for vehicular traffic; i.e., mall parking lot, store
parking lot, etc.) and look into the passenger area of the vehicle. Such
action is *not* a search (even if you aid your vision with a flashlight) and
you need no suspicion to even approach a vehicle already parked. If at any
point in time you develop probable cause to search the vehicle, you may do
so without a warrant even if it is not then occupied. If the vehicle is
locked, you may use reasonable force to break and enter the vehicle (see
G.S. 15A-251).

-------------------
Regarding the scope of Arizona v Gant:

http://apublicdefender.com/2009/04/22/4th-amdmt-gets-cpr-arizona-v-gant/

>From website above:

Notable, however, is another holding within this decision: that police will
always be entitled to search the interior of a vehicle if the evidence of
the *instant* offense might be discovered within it. Obviously, this would
not apply to traffic violations.
----

And quoting Justice Scalia regarding Arizona v. Gant:

"In my view we should simply abandon the Belton-Thornton charade of officer
safety and overrule those cases. I would hold that a vehicle search incident
to arrest is ipso facto “reasonable” only Cite as: 556 U. S. ____ (2009) 3
SCALIA, J., concurring when the object of the search is evidence of the
crime for which the arrest was made, or of another crime that the officer
has probable cause to believe occurred."

-----------
This quote from Scalia clearly distinguishes Arizona v. Gant from Illinois
v. Cabbales.  The "object of the search is evidence of the crime for which
the arrest was made,..." in the case of a drug dog alert leading to a
vehicle search discovering controlled substances, which results in an arrest
for that offence, as in Illinois v. Cabbales.  In Arizona v. Gant, an arrest
had already been made, and the subject secured, and was no longer a threat
to law enforcement, for crime(s) not related to the contents of the vehicle
law enforcement warrantless searched.  In Arizona v. Gant, the ruling
indicates a warrant is required to search a vehicle in the situation
covered, and I do not think it matters whether or not the vehicle to be
searched is locked or not.
---------------
Vision2020 Post: Ted Moffett

On 5/22/09, bear at moscow.com <bear at moscow.com> wrote:
>
> Ted,
>
> You're sort of right, but...... Notice I said get out of the car and LOCK
> it. You are no longer a threat to the police officer from anything you
> might be able to reach in the car. It's locked and you are outside of it.

> Now, If there is a drug dog there, and the dog "hits" for narcotics, they
> have to go get a warrant, and can't just jump in and search. IF they do,
> the chances are really good, that even though it was a valid stop, and
> since they could have left a police officer there to guard the LOCKED car
> until they obtained a warrant, the search gets throw out and so does any
> evidence obtained during the warrant-less search, as "fruits of the
> poisonous tree".  And if the police officer tells you to get back in your
> car, it's pretty hard for him/her to use the excuse that they searched the
> car for their own safety when THEY ordered you back into it.
>
> Now, I have to tell you, that a warrant isn't that hard to obtain from a
> magistrate, but it at least complies with Art 4 of the Constitution, and
> all of the elements required for a warrant kick in.  No Warrants shall
> issue, but upon probable cause, supported by Oath or affirmation, and
> particularly describing the place to be searched, and the persons or
> things to be seized.
>
> The presence of the drug sniffing dog raises other issues. One, what is
> the dogs track record as far as finding drugs and what's the dogs
> training. For instance, if the drug dog hits on false positives 6 out of
> 10 times, the dog isn't reliable, so again the challenge to the search
> warrant goes to the probable cause issue of the dogs reliability.  Second,
> was the dog with the police officer when you got pulled over or was there
> an unreasonable wait for them to get a drug dog there?  If the dog is
> already there with the police officer, then the dog can sniff anything
> he/she wants to.
>
> And remember, all of what we're talking about is probably going to get up
> to an appeals court for final adjudication, not a local magistrate. What
> you're doing is "saving a record" for the appeal. And something that works
> both ways, much to the law enforcement agencies dismay is the dash cameras
> and audio recorders that are in use today. IF you're charged with a crime,
> those video and audio tapes are available to you and your counsel BEFORE
> the trial.
>
> Comments?
>
>
> --------------------------------------------------------------------------------------------------------
>
>
> > A quick look at this decision (Arizona v. Gant) reveals it involves a
> > vehicle search after a suspect has been arrested and secured.  The source
> > I
> > read indicated explicitly (and any legal eagles reading please correct my
> > understanding if I am wrong) this case has no bearing on many traffic
> > stops,
> > given the text below:
> >
> > http://apublicdefender.com/2009/04/22/4th-amdmt-gets-cpr-arizona-v-gant/
> >
> > Notable, however, is another holding within this decision: that police
> > will
> > always be entitled to search the interior of a vehicle if the evidence of
> > the *instant* offense might be discovered within it. Obviously, this
> would
> > not apply to traffic violations.
> > -------------------
> > Again, someone correct me if I am wrong, but my understanding of current
> > law
> > based on US Supreme Court rulings, is that if you are stopped for a
> > traffic
> > offence, and law enforcement drug dogs alert to your vehicle, a search is
> > often legally allowed whether or not you consent.  We can assume that
> > given
> > traffic stops often do not result in arrest or attempt to secure the
> > driver,
> > for the traffic violation, that if drug dogs alert to a vehicle in this
> > case, then a search is proceeding without an arrest; and that, based on
> > the
> > evidence of the dogs trained sense of smell and response, if a search
> > proceeds and drugs are found in the vehicle, an arrest can then proceed
> > for
> > the illegal substances.
> >
> > But I'm not sure how a case like this would be pursued if the driver had
> > exited and locked the vehicle during a traffic stop for a traffic
> > violation,
> > then drug dogs altered to the vehicle.  I suspect this behavior on the
> > part
> > of the driver, and the responses of the drug dogs, might allow law
> > enforcement to force entry or call a locksmith or demand the keys, etc?
> > Of
> > course, if the driver parked and locked their vehicle, after being
> pursued
> > by law enforcement with their lights on, and fled the scene, this is
> > illegal, correct?
> >
> > Has this US Supreme Court ruling, that I referenced regarding the legal
> > status of traffic stop vehicle searches without consent based on drug dog
> > response (this case involved a traffic stop for speeding), been
> > overturned?:
> >
> >  http://www.jmls.edu/facultypubs/oneill/oneill_column_1208.shtml
> >
> > In 2003, the Illinois Supreme Court examined the use of drug-sniffing
> dogs
> > in *People v. Caballes, *207 Ill.2d 504 (2003) (''*Caballes I*''). There
> > the
> > state police, without any reasonable suspicion that drugs were present,
> > used
> > a drug-sniffing dog during a traffic stop for speeding. The dog alerted
> > and
> > drugs were found in the car. The Illinois Supreme Court suppressed the
> > drugs. It began its analysis by conceding that the dog sniff itself was
> > not
> > a ''search'' under the Fourth Amendment. But the ''scope'' of a traffic
> > stop
> > must be restricted by both the ''duration'' and the ''manner'' of the
> > stop.
> > The court conceded that the dog sniff did not improperly increase the
> > ''duration'' of the stop. But the problem was the ''manner'' of the stop:
> > the police could provide absolutely no reason why they shifted their
> > interest from the speeding charge to whether the car contained drugs.
> > Therefore, the use of the dog meant that the police activity
> impermissibly
> > changed the ''manner'' of the stop from a focus on speeding to a focus on
> > drugs. Because the police thus improperly expanded the ''scope'' of the
> > stop, the court suppressed the drugs.
> >
> > The U.S. Supreme Court reversed. *Illinois v. Caballes, *543 U.S. 405
> > (2005). First, the court held that in considering the proper scope of the
> > stop ''manner'' was irrelevant; the only relevant consideration was
> > ''duration.'' Since the dog sniff was not a search and it did not
> > improperly
> > extend the ''duration'' of the stop, it was proper.
> >
> > On remand, the Illinois Supreme Court simply acquiesced in the U.S.
> > Supreme
> > Court's decision and held for the prosecution. *People v. Caballes, *221
> > Ill.2d 282 (2006) (''* Caballes II*'').
> >
> > ------------------------------------------
> >
> > Vision2020 Post: Ted Moffett
> > On 5/22/09, bear at moscow.com <bear at moscow.com> wrote:
> >>
> >> Paul, Sunil, et al
> >>
> >> Take a look at a case named ARIZONA v. GANT,  which overturned the New
> >> York v. Belton, 453 U.S. 454 (1981) decision.
> >>
> >> So, based on GANT, if you get out of the car and LOCK it, IF the police
> >> continue to search without a warrant, the chances are that the evidence
> >> (and the charges) will be tossed. If you park the car correctly, they
> >> can't even do an "inventory" search, as there is no reason to tow the
> >> car,
> >> so no reason to "inventory" the contents, which prevents the search
> >> under
> >> the pretext of an inventory.
> >>
> >> THE really really sad part of all these decisions is that a search
> >> warrant
> >> isn't that hard to get!, yet there are some police officers that try to
> >> cut corners and by cutting those corners the result is sloppy police
> >> work
> >> and a citizen distrust of police in general.
> >>
> >> The underlining issue, and one which we are all responsible for is that
> >> police have gone from peace officers to law enforcers. Now, you have to
> >> ask why? And the answer to that is actually easy, you can't quantify a
> >> negative. For example, we can count the number of DUI arrests an officer
> >> makes, but how do you quantify how many intoxicated people the police
> >> officers stops from driving in the first place?
> >>
> >> AND while I'm on this particular soap box, ask yourself, do we really
> >> want
> >> to prevent drunk  driving as opposed to arresting and prosecution drunk
> >> drivers? Take a look at how much REVENUE is brought into the state and
> >> the
> >> individual municipalities by the drunk drivers.
> >>
> >> IF you really want drunk drivers off the road, pass the same draconian
> >> legislation that has resulted in successful eradication of drunk drivers
> >> in other countries. Make the legal driving BAC .01, thats enough that if
> >> there is some legitimate reason why there is a small amount of alcohol
> >> is
> >> a persons system, say cough medicine, you're good to go, anything else,
> >> you're over the limit. And for a sentence, seize the car. Taking away a
> >> drivers license does not stop anyone from driving, taking away a car
> >> does.
> >> And pass the legislation in such a way that if you and the bank own the
> >> car, you still have to make the car payments even if it is seized.
> >> The first year, this type of law will be drastic and I can hear all the
> >> excuses, now: Kids can't go to base ball, I need it for my job, how do I
> >> get groceries etc. The answer, IF we really want drunks off the road is:
> >> YOU should have thought about that before you drove under the influence.
> >>
> >> Now, think about some of the changes that need to be made IF we want to
> >> get people under the influence off the roads.  Let's say a cab from
> >> Pullman to Moscow cost $25.00, far cheaper  than loosing your car! Also,
> >> instead of LAW ENFORCEMENT arresting and seizing the driver and car,
> >> peace
> >> officers would actually help an impaired driver get home.
> >>
> >>
> >> Comments?
> >>
> >>
> >>
> >>
> -------------------------------------------------------------------------------------------------------
> >> > That makes sense.  I was thinking more along the lines of handing over
> >> > your keys when asked for them.  I've also heard the advice that if
> >> > you're ordered out of the car you should lock it when you get out.
> >> >
> >> > Paul
> >> >
> >> > Sunil Ramalingam wrote:
> >> >> Paul,
> >> >>
> >> >> I have to disagree with this:
> >> >>
> >> >> "If the police are going to search your car despite your lack of
> >> >> consent, don't get in their way and be cooperative by letting them
> >> >> into the car and the trunk or whatever when they ask."
> >> >>
> >> >> I think people should make it clear they are not consenting.  Don't
> >> >> let them into your trunk. Be polite, and if they order you out of the
> >> >> car, get out, but make sure your dissent is unequivocal. Don't give
> >> >> them a chance to claim you consented.
> >> >>
> >> >> Sunil
> >> >>
> >> >> > Date: Fri, 22 May 2009 08:25:06 -0700
> >> >> > From: godshatter at yahoo.com
> >> >> > To: starbliss at gmail.com
> >> >> > CC: vision2020 at moscow.com; donaledwards at hotmail.com
> >> >> > Subject: Re: [Vision2020] And From Moscow We Have . . .
> >> >> >
> >> >> > The point of the "I do not consent to a search" line is not to stop
> >> >> all
> >> >> > searches. It's a counter to one of the many "games" that are played
> >> at
> >> >> > such times by the police. When a person who does not have much
> >> contact
> >> >> > with the police is asked "Do you have any drugs in your car?", they
> >> >> > usually answer "No" which is often followed by "Then you don't mind
> >> >> if I
> >> >> > take a quick look, right?". Your normal Joe now has a little
> >> quandary.
> >> >> > They've stated on the record that they don't have drugs in the car,
> >> so
> >> >> > they may feel that they need to back up their statement by letting
> >> >> their
> >> >> > car be searched. This may even happen if they do have drugs in the
> >> >> > car. Even if you're sure that you don't have drugs in the car, how
> >> do
> >> >> > you know that your friend you gave a lift to yesterday didn't drop
> >> >> some
> >> >> > accidentally? Answer the first question with "I do not consent to a
> >> >> > search", and they know it's not worth their time to try to trick
> >> you
> >> >> > into letting them into your car.
> >> >> >
> >> >> > If the police are going to search your car despite your lack of
> >> >> consent,
> >> >> > don't get in their way and be cooperative by letting them into the
> >> car
> >> >> > and the trunk or whatever when they ask.
> >> >> >
> >> >> > Don't play their games. On the other hand, if they are going to run
> >> >> > roughshod over your rights, don't fight them.
> >> >> >
> >> >> > Remember, I'm not a lawyer, and this is not legal advice. Do some
> >> >> > searches on Youtube for "don't talk to the police" and find out
> >> more.
> >> >> >
> >> >> > Paul
> >> >> >
> >> >> > Ted Moffett wrote:
> >> >> > > A police officer must make their own subjective determination as
> >> to
> >> >> > > whether or not a drug dog has "alerted" to a potential smell.
> >> It's
> >> >> > > not as though a dog can sign an affidavit? I've known dogs to
> >> >> display
> >> >> > > the behavior you describe, for reasons I could not exactly
> >> >> determine!
> >> >> > > If human eye witness testimony is so susceptible to error, as is
> >> >> well
> >> >> > > documented, are we to trust dog "testimony" as more reliable?
> >> Oddly,
> >> >> > > it just might, in special cases, be more reliable! But a law
> >> >> > > enforcement officer who was less then thoroughly ethical could
> >> >> easily
> >> >> > > claim a drug dog "alerted," to justify a search, when it did not
> >> >> > > actually alert, correct? And could the dog testify to this lie?
> >> No.
> >> >> > > Using dog "testimony" in a court case presents certain legal
> >> >> problems.
> >> >> > > Must the dog be present in court so the accused can face those
> >> who
> >> >> > > accused them? Ridiculous, of course. But given a drug dog as the
> >> >> > > primary source of the evidence that a crime is being committed,
> >> >> thus a
> >> >> > > search that violates the Fourth Amendment is justified, seems
> >> >> > > questionable by definition, given a dog cannot testify in court.
> >> >> > > No doubt legal scholars have found a way around this objection.
> >> >> > >
> >> >> > > Ted Moffett
> >> >> > >
> >> >> > > On 5/21/09, *donald edwards* <donaledwards at hotmail.com
> >> >> > > <mailto:donaledwards at hotmail.com>> wrote:
> >> >> > >
> >> >> > >
> >> >> > > Thanks Ted, this is an interesting case you cite. All I could add
> >> >> > > from what I've seen is that a dog's alert to his owner
> >> >> > > is very precise. They are usually frantic and tearing at all
> >> >> > > parts of the vehicle or building because they are excited to do
> >> >> > > their job and earn their reward. Once they've come across
> >> >> > > a positive scent they immediately sit and look their trainer
> >> >> > > directly in the eyes until acknowledged. I don't know their
> >> >> > > failure rate but could guess it's low from studies I've seen
> >> >> > > regarding success rates at identifying even invisible skin cancer
> >> >> > > cells from healthy ones. I also don't know how often they might
> >> >> > > hit on a previous but empty hiding spot. Apparently 90% of the
> >> >> > > cash in your wallet contains cocaine residue from passing through
> >> >> > > drive-thru markets in metro areas. Would that cause a positive
> >> >> alert?
> >> >> > >
> >> >> > > The issue of an officer using his own sense of smell in
> >> >> > > determining probable cause to take a search further has led to
> >> >> > > dismissal of cases due to the subjective nature of ones'
> >> >> > > interpretation of what exactly they are smelling. This led to
> >> >> > > state mandated courses that they can swear in court as having
> >> >> > > passed and proven their ability to distinguish certain drugs from
> >> >> > > say...previous or continuing personal experience or a neighboring
> >> >> > > skunk, cat piss or Clorox factory.
> >> >> > >
> >> >> > > Seems that refusing a search, when other probable cause has
> >> >> > > already been determined is just another case for probable cause.
> >> >> > > Just exibiting excessively nervous signs, as most folks who
> >> aren't
> >> >> > > regulary in contact with the police usually are, is used as
> >> >> > > probable cause all the time. Ever hear the question "Any guns,
> >> >> > > knives, hand grenades, bodies or nukes in the car?" When a person
> >> >> > > quickly answers a serious "No Sir!" vs. a slight chuckle or "Huh?
> >> >> > > Really?" as a person with nothing to hide would probably reply,
> >> >> > > it's a red flag that an officer may want to just ask if they
> >> might
> >> >> > > search.
> >> >> > >
> >> >> > > On the issue of gays in the military...I'd think they have as
> >> much
> >> >> > > right to fight and die for all of our rights to life, liberty and
> >> >> > > the pursuit of happiness, in spite of their own infringements
> >> back
> >> >> > > home, just as African-Americans did since the civil war.
> >> >> > >
> >> >> > > Much to think about, thanks Viz'z!
> >> >> > >
> >> >> > > Don
> >> >> > >
> >> >> > >
> >>
> >
>
>
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://mailman.fsr.com/pipermail/vision2020/attachments/20090523/1cd6c907/attachment-0001.html 