[Vision2020] And From Moscow We Have . . .

[Ted Moffett]

Numerous difficult legal scenarios can be developed... I'm just focusing on
the simple outlines of the law in these cases.  There are others more
trained in the law who read Vision2020 who might be able to answer your
questions in greater detail and with more authority.  And given that no one
else reading Vision2020, including those trained in the law, is responding
to this discussion, and I'm repeating some of the same points, I'll let it
rest after this post.

I think the basics of the case in Illinois v. Cabbales are different than
Arizona v. Gant.  Gant does limit warrantless searches of vehicles conducted
during or after an arrest. I'm not disputing that. I think the Gant decision
is a welcome shift toward support for the Fourth Amendment.

I have been focusing on Illinois v. Cabbales, where a vehicle search was
conducted and it was possible no arrest would occur.  The person whose
vehicle was being searched in this case was not under arrest before the
search.

The situation in Illinois v. Cabbales involved a warrantless search
conducted during a traffic stop for speeding.  There might not have been
any charges in this case beyond a speeding ticket, and no arrest, but the
search would have been conducted anyway.  There was probable cause to search
the vehicle, based on drug dogs response.  But illegal items might not have
been found in the vehicle.  No one was being arrested before the search.
The US Supreme Court upheld the use of drug dogs without a warrant.  I think
one of the arguments was that use of drug dogs should require a warrant
under the Fourth Amendment.  The warrantless probable cause search of the
vehicle after the dogs altered was legal.

I don't agree with the erosion of the Fourth Amendment, but the legal
reality is what it is on this issue.  The ease with which law enforcement
can find a pretext for a probable cause search of a vehicle, without a
warrant, can result in abuse.  The cases described below are rather
incredible:

http://www.cnn.com/2009/CRIME/05/05/texas.police.seizures/
-------------------
This is a different legal situation, but I've had my car searched at the
Canadian border when I was not under arrest and they did not have a warrant
(that I knew).  They jumbled the items in my trunk into chaos.  But I am
reasonably certain the search was legal.  I was treated fairly well, and not
delayed a long time; but I know people who were put through hell at the
Canadian border with a tedious search of their vehicle lasting for hours and
hours...

Vehicles driving on the highway or parked in public places are not afforded
the same level of Fourth Amendment protection as private property,
residences, apartments.  Thus the US Supreme Court decisions that allow
warrantless searches of vehicles with probable cause and without
consent. These searches sometimes do not result in any arrest.   How can
Gant apply to a vehicle search where there is no arrest?

At the risk of oversimplifying, I still think based on my understanding that
Arizona v. Gant does not mandate a warrant to conduct the probable cause
search of a vehicle as described above in Illinois v. Cabbales.  And that
current law as defined by US Supreme Court decisions still allows vehicle
searches with probable cause without a warrant or consent.

Read the document I posted to Vision2020 on Arizona v. Gant exceptions to
the warrant requirement.

Ted Moffett

On 5/23/09, bear at moscow.com <bear at moscow.com> wrote:
>
>
>
>
> Ted,
>
> Locking and removing yourself from the vehicle is exactly what I'm talking
> about.
> Warrant-less searches are per-say unconstitutional unless they meet an
> exception.
>
> This is from the AZ V. Gant decision wherein the Court discusses Chimel
> and the EXCEPTION to the warrant rule:
>
> In Chimel, we held that a search incident to arrest may
> only include “the arrestee’s person and the area ‘within his
> immediate control’—construing that phrase to mean the
> area from within which he might gain possession of a
> weapon or destructible evidence.” Ibid.  That limitation,
> which continues to define the boundaries of the exception,
> ensures that the scope of a search incident to arrest is
> commensurate with its purposes of protecting arresting
> officers and safeguarding any evidence of the offense of
> arrest that an arrestee might conceal or destroy.  See ibid.
> (noting that searches incident to arrest are reasonable “in
> order to remove any weapons [the arrestee] might seek to
> use” and “in order to prevent [the] concealment or destruc­
> tion” of evidence (emphasis added)).  If there is no possibil­
> ity that an arrestee could reach into the area that law
> enforcement officers seek to search, both justifications for
> the search-incident-to-arrest exception are absent and the
> rule does not apply.  E.g., Preston v. United States, 376
> U. S. 364, 367–368 (1964).
>
> Now, once the car is LOCKED and the driver (more properly at this point,
> the FORMER driver) has taken the car out of the equation, and to search it
> requires a warrant.
>
> A better example would be, because of the dog-alerting to drugs, would be
> someone walking down the street and the dog alerts to an individual also
> walking down the street. The suspected person is stopped by the police
> office with the dog, who has every right to be walking down a public
> street.  When stopped and questioned, the suspect, who I'll call John Doe,
> is obviously to the police officer, higher than a kite.  During the
> arrest, John Doe is given a personal search incident to his arrest for
> public intoxication, and in his pockets, no drugs are found but he has car
> keys. Are you telling me based on your reading of a search incidental to
> an arrest, that the car that the key go to can be searched without a
> warrant?
>
> I don't think so. Once the car is taken out of the equation, it's out of
> the search incidental to arrest. Now, where it really gets interesting is
> since they have John Does name, based on the arrest and a routine booking
> background check, the find out the car he owns  is a Dodge Neon, plate #
> xxx-lll,  and a patrolling officer spots the car legally parked in town.
> The drug dog officer arrives, and the dog hits to the car containing
> drugs. Since the police have John Doe in custody, they have the keys, and
> the dog has alerted, can they just open the car and search or do they need
> a warrant? I believe they NEED A WARRANT.
>
> Even more interesting, since they have arrested John Doe for the drug
> offense, and they know where he lives, isn't it logical to walk the dog by
> the house? If the dog alerts, and since they have the keys (remember John
> is in jail)  can they just go in or do they need a warrant?
>
>
> Comments?
>
>
>
> ---------------------------------------------------------------------------------------------------------
> > 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
> >> >> >
> >> >> >
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