[Vision2020] And From Moscow We Have . . .

[Ted Moffett]

Someone else in this long thread may have commented along these lines, so if
I am repeating points already made, excuse the redundancy.

Consider that suspicions about illegal drugs are only one reason to conduct
a warrantless probable cause search of a vehicle during a traffic stop.
Stolen property, illegal arms, or even just having large amounts of cash,
are reasons for probable cause searches.  And consider, when the socialist
health regulators get their way, smoking tobacco may become more
criminalized.  Actually, given the full extent of the social and personal
harm from tobacco, there is more reason to criminalize it then cannabis.

You don't really mean that you don't mind the police pulling you over on the
highway whenever they want to search your vehicle, because you are innocent
of wrongdoing, do you?  This is somewhat similar to the statement sometimes
made by those who appear unconcerned about the erosion of the Fourth
Amendment, who say they don't mind the police coming to their home to
conduct a warrantless search, because they have nothing to hide.

Article on police seizures of property and/or cash during traffic stops in
Texas:

http://www.cnn.com/2009/CRIME/05/05/texas.police.seizures/
----------------

I'm a bit surprised that someone who has appeared libertarian, opposing
state regulation of economics, appears unconcerned about some forms of state
intrusion, state extension of power, into the private lives of citizens.  I
think most people would consider being pulled over for a traffic stop and
then having an extensive search of their vehicle conducted, state intrusion
into their private life, which should only be conducted when law enforcement
have substantial evidence.

Ted Moffett

On 5/26/09, lfalen <lfalen at turbonet.com> wrote:
>
> 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
> > > >> > >
> > > >> > >
> > >
> >
> >
>
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