[Vision2020] And From Moscow We Have . . .

Tue May 26 11:13:11 PDT 2009

I am the only one who drives my car. I don't use drugs or alcohol except for a tobacco pipe which I only use on long drives to help stay awake. Otherwise I do not smoke either. If any officer wants to search my car they are welcome to do so.
Roger
-----Original message-----
From: Ted Moffett starbliss at gmail.com
Date: Fri, 22 May 2009 13:11:33 -0700
To: "bear at moscow.com" bear at moscow.com
Subject: Re: [Vision2020] And From Moscow We Have . . .

> 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
> > >> > >
> > >> > >
> >
> 
>