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Invalid "Terry frisk"

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In Illinois I was pulled over leaving a bar one night. After performing pre exit tests the officer asked me to step out and do the FST. I agreed to perform those tests, but when I got out of the car he searched me.

In my front pocket he found a film cannister containing a small amount of marijuana. I then did the FST's. After that I was placed under arrest. Since I had not been drinking I gladly agreed to submit to chemical testing of my blood and urine. (I was absolutely ignorant of DUI laws at that time)

Naturally the blood test revealed more than 0 amount of THC in my blood and I was charged with DUI.

My PD filed a motion to suppress the evidence (the mj, and the bloodtest), as the search of the defendant was not valid under "TERRY v. OHIO".

At the suppression hearing the officer was asked why he searched me? His response was " I search everyone I come in contact with". The Judge interjects and says "You mean you seach them when in light of the circumstances you believe them to be armed".

The officer then says "No, I search everyone I come in contact with".

Here are my questions:

If an unlawful stop invalidates the search, doesn't it stand to reason that an illegal search would invalidate the stop?

I ask because the evidence was not suppressed, rather it was admitted under the "inevitable discovery exception".

My understanding is inevitable discovery would only apply when the Government can show the evidence would have been discovered "through an ongoing, independant investigation, so as to remove the taint of the illegal search"

Would it not be an unusual set of circumstances for this exception to be applied to a "stop and frisk".

The Judge explained it was inevitable the evidence would have been discovered "incident to arrest" anyway.


The defense argued it was the arrest that was inevitable following
the illegal search.

Has anyone ever heard of this exception being applied to an invalid "Terry frisk" ?

Sorry for such a long post, thanks in advance for your feedback.

Roger
 


CdwJava

Senior Member
I agreed to perform those tests, but when I got out of the car he searched me.
It is relatively easy to articulate the probable cause necessary to do a pat-down for weapons, but if he reached into your pockets without consent or articulation, that could be a problem.

I then did the FST's. After that I was placed under arrest. Since I had not been drinking I gladly agreed to submit to chemical testing of my blood and urine. (I was absolutely ignorant of DUI laws at that time)

Naturally the blood test revealed more than 0 amount of THC in my blood and I was charged with DUI.
Naturally.

My PD filed a motion to suppress the evidence (the mj, and the bloodtest), as the search of the defendant was not valid under "TERRY v. OHIO".
The marijuana I can see being suppressed, but the blood test? Why? You were arrested for DUI, weren't you? If so, then the chemical test shoul automatically be done.

At the suppression hearing the officer was asked why he searched me? His response was " I search everyone I come in contact with". The Judge interjects and says "You mean you seach them when in light of the circumstances you believe them to be armed".
In my opinion the judge was out of line. And the officer's line about it being common practice or even policy does NOT cut legal mustard and is specifically dismissed as justification in a number of case decisions.

The officer then says "No, I search everyone I come in contact with".
Given these two statements by the officer, in my opinion the marijuana should have been suppressed ... however, given the "inevitable discovery" argument, a valid argument can be made for its inclusion.

If an unlawful stop invalidates the search, doesn't it stand to reason that an illegal search would invalidate the stop?
No. Provided the detention - the reason for the stop -was valid, then even if a search for the marijuana is unlawful the proper FST and evaluation leading to a DUI arrest is proper.

I ask because the evidence was not suppressed, rather it was admitted under the "inevitable discovery exception".
That makes sense to me.

My understanding is inevitable discovery would only apply when the Government can show the evidence would have been discovered "through an ongoing, independant investigation, so as to remove the taint of the illegal search"
Yep. And if the court finds that the officer's evaluation would have resulted in the identification of the objective signs of impairment to justify the probable cause for an arrest for DUI, then inevitable discovery is a good theory.

In other words, the court apparently agrees that the officer had good cause to make an arrest for DUI.

The Judge explained it was inevitable the evidence would have been discovered "incident to arrest" anyway.
So it would seem.


- Carl
 
Carl, thanks for the feedback.

Would you agree for the judge to find the officer had probable cause to make the arrest, he has to lend a considerable amount of credibility to the officers testimony on the FST's?

How much credibility should this officer have had once he testified to an illegal search of my person? I contend, zero credibility. If I testified I performed the field sobriety test as to the officers instructions. More weight was granted to the Officers testimony than mine. Why?

At that point since he testified he searched me illegally, how can you give more credibility to him than me? The guy who admits to a crime (the illegal search), has more credibility than the person he is accusing of a crime?
That doesn't sound right, does it?

Why suppress the bloodtest? The fruit of the poisonous tree doctrine. As I stated in my original post. I was not under the influence of alcohol, I wasn't even under the influence of MJ at the time. Wouldn't it be reasonable to conclude he asked for the bloodtest because of his illegally obtained knowledge that I had MJ in my posession?

Once he places his hands on me without lawful justification hasn't he falsely arrested me?

Thanks again, more feedback would be appreciated.

Roger
 

Zigner

Senior Member, Non-Attorney
Just because it's improper that he searches ALL people he comes in contact with doesn't mean it was improper in YOUR case.
 

CdwJava

Senior Member
Would you agree for the judge to find the officer had probable cause to make the arrest, he has to lend a considerable amount of credibility to the officers testimony on the FST's?
The officer would - or SHOULD - have to articulate the objective symptoms of alcohol for the DUI.

How much credibility should this officer have had once he testified to an illegal search of my person? I contend, zero credibility.
The search is not an issue of credibility. If he erringly thought it proper, the fruit gets suppressed.

If I testified I performed the field sobriety test as to the officers instructions. More weight was granted to the Officers testimony than mine. Why?
You'd have to ask a jury or a judge.

In general, the officer has no reason to lie whereas you do. In this case the officer was truthful even about the reason for his search even though he was in error as to the legitimacy of that search. So, he would appear to be
all that more credible.

At that point since he testified he searched me illegally, how can you give more credibility to him than me? The guy who admits to a crime (the illegal search), has more credibility than the person he is accusing of a crime?That doesn't sound right, does it?
An unlawful search is not a crime. It is certainly not a crime of moral turpitude. A court or a jury would be free to evaluate that when weighing credibility, but that is up to them.

Why suppress the bloodtest? The fruit of the poisonous tree doctrine.
No. The blood was not found as a result of an unlawful search. Unless the argument can successfully be made that the ONLY reason you were arrested for DUI was because the officer found the marijuana on your person, that won't fly. if he can articulate probable cause that you were impaired, then the DUI and the test are good.

As I stated in my original post. I was not under the influence of alcohol, I wasn't even under the influence of MJ at the time. Wouldn't it be reasonable to conclude he asked for the bloodtest because of his illegally obtained knowledge that I had MJ in my posession?
If you can convince a jury you were clear, sure. But, the worst person to evaluate that condition is the person impaired ... if you were impaired.

Once he places his hands on me without lawful justification hasn't he falsely arrested me?
Only of a court says so.


- Carl
 

dave33

Senior Member
Joshuaace2, 1st I want to say sorry about what happened in court. It sounds like the judge pretty much ignored the law.I have come to the conclusion that judges always give the officers word more credibility. The only answer I come up with is expediance.It would confuse things and just take longer in general. When the judge interjected and said basically "you search every one you believe to be armed". That obviously was the judge trying to correct the officers testimony. I mean come on, how many laws did that violate? To let you prevail, he would have to concede the officer lied and that would have taken longer. I find it hard to believe judges allow if not condone such conduct for such a reason, but it happens. So now they try to get you to take a deal so you cannot appeal. You may very well win on appeal, and now the ruling has given them more ammo. Anyway welcome to the criminal justice system, if you get a just result you are one of the rare ones. Although it seems things are against you already. goodluck.
 

CdwJava

Senior Member
But, the officer did not apparently lie. In fact, he told the truth of why he searched the OP even when the judge tried to improperly (in my opinion) prompt the officer to use the "correct" language to justify the search.

Since the marijuana would have been discovered pursuant to a search incident to arrest, the real question will be whether or not the officer's observations of the OP's lack of sobriety were sufficient to justify the probable cause necessary for an arrest. If they were, then the marijuana would have been discovered.

Now, if the defense can show that the arrest would never have happened if had not been for the discovery of the marijuana, then the suppression case would have merit.

As it is,the OP's attorney will have an opportunity to make both challenges. Not knowing the status of search laws in the OP's state I can only opine that I suspect it is very likely that the DUI arrest will be in.

- Carl
 

dave33

Senior Member
Carl, sometimes you make me laugh. He was not prompting him to use the "correct language" he was trying to get the officer to ammend his statement to make the search legal. In my opinion, in no free society should that case have merit. He was sober, he should not have even been told to exit the vehicle. The search was improper, and certainly the marijuana should have been tossed. What is this guy going to have to do to get justice? What court will he finally prevail in ? The problem is, is that he had the marijuana and that is all the judge sees. He is ignoring the law and doing what he feels is right. I think this is an all to common problem and is basically rendering the laws that protect our freedoms useless. This concerns me greatly, and am frustrated by the lack of inaction by our policy makers. Also how can you charge someone with DUI when it is well known that marijuana stays in your urine up to a month? The answer is you shouldn't, but get pressured so much you plead guilty even if you are not. That means if you smoke marijuana, for up to a month you can be charged and convicted of DUI even if you haven't smoked in 2 weeks. Carl, that is not justice. The system is getting worse and the abuses are out of control.
 
Carl, for the second time you have stated you thought it was improper for the Judge to prompt the officer, I agree.

I still say it takes an independent, ongoing investigation to prove inevitable discovery. Independent being the key word here.

In a previous post you said,"An unlawful search is not a crime." Then why do they call it an illegal search?

You also said, "The search is not an issue of credibility. If he erringly thought it proper, the fruit gets suppressed."

Exactly, the fruit being the mj as well as the bloodtest.

I also would say incompetence equals a lack of credibility.

Can anyone cite a case where the Governments "proof" of inevitable discovery was the testimony of the officer who committed the illegal search in the first place? Remember this is a stop and frisk.

Thanks,

Roger
 
Dave, I actually tested positive for THC 96 days after the last time I smoked.

Thanks, I think me and you are on the same page though. Also check out my thread "Did the Judge violate my rights". Same case, different point.

If the state has to use criminal activity to arrest and prosecute, that is a whole lot larger threat to society than the criminals their trying to catch.

Thanks, as always, feedback appreciated

Roger
 

Thomas Howard

Junior Member
Quote:Naturally the blood test revealed more than 0 amount of THC in my blood and I was charged with DUI.

What is the pass\fail threshold? in Ill?
On D.O.T. drug tests mj is 50ng per ml years ago it was 25 which had
false positives and second hand smoke was real risky.
I read that federal law enforcement gets twice that 100 ng

Sounds like he had the bar staked out. What LE says on probable cause
seems moot. 1.) The burden of proof is on you. Guilty until proven innocent.
2.) 99.9% of the time when someone is asked to do a FST the real test follows.Then there case is made.

"Your Honor officer Blah Blah is lying" not likely too work.

This case should be based on were you or were you not driving under the
influence. With a positive test for illeagal drugs i do not belive they care
one way or the other.
 
In Il you are presumed guilty if you have "any" amount of THC in your blood or urine. That's why I had to attack the legality of the search. I had smoked about 12-14 hours before the FST's, and had zero alcohol.

I damn sure passed those FST's, I wasn't under the influence of anything at the time. I believe once he unlawfully found the mj in my pocket, it was a no brainer on his part to believe it was in my blood. That was the reason for the bloodtest, not my performance on the FST's

Thanks
 

CdwJava

Senior Member
Carl, sometimes you make me laugh. He was not prompting him to use the "correct language" he was trying to get the officer to ammend his statement to make the search legal.
I thought that was what I said. He was trying to get the officer to use language that would make the search legal. Obviously the judge knew that the search exceeded the scope of a Terry frisk and he was improperly trying to guide him.

He was sober, he should not have even been told to exit the vehicle.
How do YOU know he was sober? He may not have been drinking, but that is not mean he was not impaired on some other substance.

The search was improper, and certainly the marijuana should have been tossed.
But, you still have that nasty little legal twist of "inevitable discovery."

What is this guy going to have to do to get justice? What court will he finally prevail in ?
The arraignment court judge may not be the same judge that will hear a motion to suppress. Plus, given the judge's leading direction to the officer, I suspect the defense would have a good argument to make to get a suppression motion heard by a new judge.

I am not sure of the process in the OP's state, so his state may have a slightly different process than mine, but the idea is still the same ... seek to have the evidence to suppress or ask for a probable cause hearing if that is permitted.

Also how can you charge someone with DUI when it is well known that marijuana stays in your urine up to a month?
Easy - it's about impairment at the time of the stop, not the presence of metabolites in the blood. The metabolites and their concentration may provide a window to recent use, and certainly shows past use, but it would be the officer's observations and articulation of impairment that will serve as evidence of the DUI.

That means if you smoke marijuana, for up to a month you can be charged and convicted of DUI even if you haven't smoked in 2 weeks.
That is not how it works anywhere that I am aware of. I would agree with you if the driver were arrested solely for possession of the marijuana and then charged for marijuana solely because of the presence of THC metabolites in the blood or urine. But, apparently, this was not the case. Ostensibly, the OP was arrested for being impaired. The test merely confirmed prior use. And, if a concentration level was determined, it could also serve to determine how recent the use might have been.

- Carl
 

CdwJava

Senior Member
I still say it takes an independent, ongoing investigation to prove inevitable discovery. Independent being the key word here.
That's not the standard I am familiar with.

Besides, how can you argue with the logic. You had the marijuana in your pocket ... if arrested for DUI how would they NOT have discovered it? It is reasonable to assume they would search you after they arrested you and then they would discover it. The defense can certainly argue that it is not inevitable, but it would be a long shot.

In a previous post you said,"An unlawful search is not a crime." Then why do they call it an illegal search?
It is not a crime because by definition a crime has to have a prescribed penalty including fines, jail time, or the like. The consequences of an unlawful search is generally the suppression of the evidence, not jail time or fines. So, it is not generally a crime unless it is a knowing and intentional violation of your civil rights and the feds are willing to conduct such a prosecution ... which, except in the most egregious examples, they are not.

So, the officer may have conducted an unlawful search, but the consequences of that action would be the suppression of the evidence.

You also said, "The search is not an issue of credibility. If he erringly thought it proper, the fruit gets suppressed."

Exactly, the fruit being the mj as well as the bloodtest.
No. The DUI was theoretically established independent of the marijuana. Unless the officer articulates that the only reason you were arrested was because of the presence of the marijuana in your pocket. But, if you were arrested as a result of his observation and opinion of your impairment, then it is a separate matter and the arrest is unrelated to the presence of marijuana in your pocket. Certainly the defense will try to argue that the presence of the marijuana tainted the officer's evaluation, and that is a fair argument to be made. But unless a court rules that there was NO probable cause to make an arrest for a DUI, the blood test should be in.

I also would say incompetence equals a lack of credibility.
You can say that ... but, one can be incompetent and still truthful. Besides, the issue of credibility is an issue for the trier of fact.


- Carl
 
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