Legal Car Search Or Not????

[zekebo]

TN.
We live in Hendersonville tn. Lately we've noticed a lot of people pulled over with four or five cop cars, dogs and SOME folks in cuffs. You always figure "they got caught this time."
Well yesterday it happened to my daughter. She was pulled over for seatbelt and there was 2 cops in that car. As he was writing a warning another car pulled up and they started talking. Meantime the k-9 pulled up and the dog was brought out and went around the car. She was told the dog picked up something and please get out of the car. She said there was nothing in the car at which point she said "search it". They did and found nothing turning it inside out along with her purse and pockets. She was put in their car and all five cops talked. One went for his cuffs and then they talked more and she was brought out of the car and they told her they knew there was something in her car and where was it. The dog found nothing and they found nothing but they kept at her as to where the dope was.
They let her go and she went another part of town to a store. When she came out they were ALL there on the lot. They followed her across town. Any Ideas or help on this. Thanks

[seniorjudge]

Originally Posted by zekebo

TN.
We live in Hendersonville tn. Lately we've noticed a lot of people pulled over with four or five cop cars, dogs and SOME folks in cuffs. You always figure "they got caught this time."
Well yesterday it happened to my daughter. She was pulled over for seatbelt and there was 2 cops in that car. As he was writing a warning another car pulled up and they started talking. Meantime the k-9 pulled up and the dog was brought out and went around the car. She was told the dog picked up something and please get out of the car. She said there was nothing in the car at which point she said "search it". They did and found nothing turning it inside out along with her purse and pockets. She was put in their car and all five cops talked. One went for his cuffs and then they talked more and she was brought out of the car and they told her they knew there was something in her car and where was it. The dog found nothing and they found nothing but they kept at her as to where the dope was.
They let her go and she went another part of town to a store. When she came out they were ALL there on the lot. They followed her across town. Any Ideas or help on this. Thanks

To have a violation of the fourth amendment, there must be an illegal search and seizure.

Let's just assume that the search was illegal.

Since there was no seizure, there is nothing to complain about.

[tranquility]

An illegal search is a violation of the fourth amendment. As seniorjudge alludes, constitutional rights do not have an inherent value. Merely having your constitutional rights violated under color of authority is not going to net any money. The key is damages. Obviously, a seizure would allow you to sue for the item. Other damages could result whether or not there was a seizure.

I don't know the statutes in TN, but in CA, violation of civil rights can carry a statutory amount as damages for their violaiton. That state statute is an option to include in any lawsuit.

However, I don't see the search violation here. She was stopped legally. The dogs were on the scene in a reasonable time. They alerted. Not only would the alert give probable cause for a search, but also she gave consent for the search.

The only thing I see which might be a problem is the placing of the daugher in the car. While this cannot be a fourth amendment violation (The seatbelt arrest decision by the supreme court. If there is probable cause for anything, custody is not 4th violation.), it could be a violation of state statutes on arrest. If your state does not provide the abililty to take a person to jail on a seatbelt offense if they have proper ID there may be a false arrest or imprisionment without privilege.

They had PC to pull over. They can detain for a reasonable time to do their pull-over thing. (Write the ticket, check for warrants etc.) Dog gives reasonable suspicion to detain for reasonable investigation of the alert. Many decisions give the placing of a person in a police car where they can't get out to be an arrest and not merely a detention. An arrest requires probable cause. A dog alert on its own does not give probable cause for an arrest.

There may be a false arrest, but we then get back to the damages issue.

[xylene]

Seatbelt checkpoints are legal

Your daughter was not wearing a seatbelt. (that is enough for me to not want to help your daughter BTW...)

The dog alert was justification to search the car anyway.

AND

Your daughter gave consent to search the car.

Being followed by the police for no apparent reason is not illegal.

Being followed by the police after a contact where drugs were strongly suspected is not even uncommon.

Advice for you and daughter:

1. Never consent to any police search of person, vehicle or home.
2. WEAR YOUR DAMN SEATBELT.
3. Do not answer police questions beyond the basics.
4. Police have the authority to LIE. Thats right.
5. Dogs are UNRELIABLE. False positives and intrusive searches are lawful.

Things to do:

1. Some research.
2. Write your police and government officials and sound off.
3. Support candiates for office with a rational approach to the drug issue.
4. Move to a blue state.

[CdwJava]

Originally Posted by tranquility

The only thing I see which might be a problem is the placing of the daugher in the car. While this cannot be a fourth amendment violation (The seatbelt arrest decision by the supreme court. If there is probable cause for anything, custody is not 4th violation.), it could be a violation of state statutes on arrest. If your state does not provide the abililty to take a person to jail on a seatbelt offense if they have proper ID there may be a false arrest or imprisionment without privilege.

Not necessarily true.

If I have cause to search a car, I can certainly detain the driver in cuffs and/or in my patrol vehicle while I conduct the search even though the detention was for an offense that would not permit a custodial arrest under CA law.

- Carl

[tranquility]

Carl wrote about the possibility of arrest by the placing of a suspect in a police vehicle:
Not necessarily true.

If I have cause to search a car, I can certainly detain the driver in cuffs and/or in my patrol vehicle while I conduct the search even though the detention was for an offense that would not permit a custodial arrest under CA law.

As I wrote, "Many decisions give the placing of a person in a police car where they can't get out to be an arrest and not merely a detention." This is usually in relation to Miranda rights where there is a great importance between a temporary detention and custody, but apply to areas of arrest jurisprudence.

The general path I'd take would be:
Orozco v. Texas, (1969) 394 U.S. 324 where they found that a detention can turn into an arrest if it is not handled properly. And, if there is no probable cause to arrest would be illegal.
(For more specific indicators see also: United states v. Ramos-Zaragosa (9th Cir 1975) 516 R.2d 141, New York v. Quarles (1984) 487 U.S. 649.

For the placing in a locked police vehicle specifically, see:
People v. Natale (1978) 77 Cal.App.3d 568, United States v. Parr (9th Cir. 1988) 843 F.2d 1228, United States v. Ricardo D. (9th Cir. 1990) 912 F.2d 337.

In the last, "Detention in a patrol car exceeds permissible Terry limits absent some reasonable justification." If I recall, you patrol in an area which abuts a national park. I could make the case that if you had no back up available for a reasonable time, because of distances and not because of reasons in the department's control, if you had PC to search you could make an officer safety decision to put a person in handcuffs in your car and not "arrest" her. That would not be the same when we are talking about a single woman surrounded by five police officers on the basis of a seat belt violation and a dog alert when she was cooperating in all ways. There, it would not be reasonable--although I don't know the case law in TN or its circut and there may be a split on this.

In addition to the officer safety arena, some of the arrest taint can be removed if the police make it very clear the person is being detained only and not arrested. (People v. Celis (2004) 33 Cal.4th 667.) We could go on and on, but the actual result is fact sensitive.

With the facts cited by the OP, what result?

[CdwJava]

Of course it is fact specific, but, I did not want the presumption to be presented that simply because the offense might not be subject to a custodial arrest (such as would be the case in CA), it is often justifiable to place the driver in handcuffs in the back of a locked police car. Maybe not if there are five officers present, but certainly likely if one or two.

- Carl