Search and Seizure Questions...

[feioncastor]

What is the name of your state? Arizona

Here's the situation.

My father failed to appear in court, and, of course, a warrant was issued for his arrest, as is the standard.

Well, the officers did find and arrest him on the charges of Failure to Appear, and then proceeded to search his vehicle.

My understanding on search and seizure is that this was an unlawful search. Upon searching the vehicle, they discovered several different perscription medications, in one container, which they took be unlawful possesion. My father has since provided evidence of his legal right to the medication, and the police refuse to return it to him. He is a diabetic, and some of those pills are necessary for him to survive. A doctor, with a degree in medicine, issued a perscription to my father, stating that he ought to take this medication for a particular purpose, and the police have overridden a doctor's authority, because they're... well, I won't go there.

As well, I feel that the search itself was unlawful, not just the confiscation of his property. My understanding is that unless a search warrant is issued, the officer must present probable cause that contraband exists within the thing being searched. My father's warrant was for failure to appear, which means that the arrest warrant itself implied no possesion of contraband. I confronted the officer and stated that I felt the search was unlawful, and it would be in his best interest to order his men out of the vehicle. The detective told me that I needed to "shut my mouth" because I didn't "want to see him get worked up".

Another definition of probable cause would be using one of your HUMAN five senses to detect the presence of contraband, i.e. you smell marijuana, or you see a crackpipe. Because no contraband was recovered from the vehicle, there's absolutely no way that any of the officers could've detected the presence of contraband. There was none there to detect, so use of probable cause means nothing, or so is my understanding.

Now my father is sick and having difficulty going about his life because he just doesn't have the money to get new perscriptions, much less hire a lawyer to help him. He needs his medicine, and can't get it...

So am I right? Was the search and seizure unlawful? Or did the cops have full authority to search the vehicle, without a warrant or probable cause?

 

[garrula lingua]

I didn't read all of your post, but - regarding the search:
the police have an absolute right to do an inventory search of the vehicle when they are arresting the driver (and impounding the vehicle).

Contraband found can be charged against the driver.

 

[feioncastor]

I didn't read all of your post, but - regarding the search:
the police have an absolute right to do an inventory search of the vehicle when they are arresting the driver (and impounding the vehicle).

Contraband found can be charged against the driver.

The vehicle wasn't impounded. I was instructed to drive it home, after they finished searching it and confiscating my father's possessions.

As well, the vehicle wasn't registered to my father. He needed a truck for some work he was doing, so he borrowed a friend's truck, meaning that a lot of the items in the vehicle may not belong to the driver.

As it was, there was no contraband, except some perscription meds, which were entirely legal, but the police kept them anyway and will not return them, despite my father's failing health as a result of him not taking his doctor perscribed medication.

And again, my understanding is that the police must have a search warrant, or probable cause in order to lawfully search anything. Because no contraband was recovered, they can not possibly claim they had probably cause; there was no contraband, therefore, none of the officers could have detected the presence of contraband. As well, they had no search warrant.

No warrant, no probable cause, no search. That's my understanding.

But then again, that's why I'm here. Because I'm not just not sure.

 

[BelizeBreeze]

The vehicle wasn't impounded. I was instructed to drive it home, after they finished searching it and confiscating my father's possessions.

Look up search incident to an arrest and then go to law school.

As well, the vehicle wasn't registered to my father. He needed a truck for some work he was doing, so he borrowed a friend's truck, meaning that a lot of the items in the vehicle may not belong to the driver.

Doesn't matter. He was in control of the vehicle and responsible for it's contents.

As it was, there was no contraband, except some perscription meds, which were entirely legal, but the police kept them anyway and will not return them, despite my father's failing health as a result of him not taking his doctor perscribed medication.

And if he could prove that they were his by producing the prescriptions or the fact that they were issued to him (the label showed his name) then they would have not taken them. You are not giving us the whole story.

And again, my understanding is that the police must have a search warrant, or probable cause in order to lawfully search anything.

And your understanding is wrong.

Because no contraband was recovered, they can not possibly claim they had probably cause; there was no contraband, therefore, none of the officers could have detected the presence of contraband. As well, they had no search warrant.

Serach incident to an arrest.

No warrant, no probable cause, no search. That's my understanding.

Keep beating this dead horse doesn't make it right.

But then again, that's why I'm here. Because I'm not just not sure.

and you're not right either.

Now, what's the REST of the story?

 

[feioncastor]

Look up search incident to an arrest and then go to law school.

Doesn't matter. He was in control of the vehicle and responsible for it's contents.

And if he could prove that they were his by producing the prescriptions or the fact that they were issued to him (the label showed his name) then they would have not taken them. You are not giving us the whole story.

And your understanding is wrong.

Serach incident to an arrest.

Keep beating this dead horse doesn't make it right.

and you're not right either.

Now, what's the REST of the story?

I'm not sure what you're asking for, but the medications were not in the orginal bottles, and I've never heard of a law that requires you to keep your perscription medications in the original bottles; in fact, you can purchase at any pharmacy those daily reminder things that let you know what pills to take each day of the week. If you put your pills in one of those, they're no longer in the orginal container. My father puts his pills into other bottles because it's more convinient. You get a perscription of 20 pills, and they put in a bottle big enough to hold 200. So he consolidated them to make them easier to carry around. Easier to carry one bottle, rather than 5 bottles.

My father did present the paperwork indicating his legal posession of the medication, and the police have refused to return them to him. They also confiscated his pistol, and won't return it to him, even though he's not a felon, or on probation, or any other restrictions. He legally can own that gun, and they've kept it. You see, the arresting officer has had a grudge against my father since 1995, during an incident regarding my mother and her boyfriend (my parents are divorced), and the officer has been watching for several years, just waiting for him to screw up, and my father got ticketed for selling alcohol to a minor, and failed to show up in court, due to transportation issues (his truck was stolen, and destroyed).

I know that he was in control of the vehicle, thus responsible for the contents, but nothing was found, and he's not being charged with posessing the meds they seized. They know those pills are legally his, so they're aren't prosecuting him for posession, but they won't give them back anyway.

 

[BelizeBreeze]

I'm not sure what you're asking for, but the medications were not in the orginal bottles, and I've never heard of a law that requires you to keep your perscription medications in the original bottles; in fact, you can purchase at any pharmacy those daily reminder things that let you know what pills to take each day of the week. If you put your pills in one of those, they're no longer in the orginal container. My father puts his pills into other bottles because it's more convinient. You get a perscription of 20 pills, and they put in a bottle big enough to hold 200. So he consolidated them to make them easier to carry around. Easier to carry one bottle, rather than 5 bottles.

And that is the answer to your question.

My father did present the paperwork indicating his legal posession of the medication, and the police have refused to return them to him. They also confiscated his pistol, and won't return it to him, even though he's not a felon, or on probation, or any other restrictions. He legally can own that gun, and they've kept it. You see, the arresting officer has had a grudge against my father since 1995, during an incident regarding my mother and her boyfriend (my parents are divorced), and the officer has been watching for several years, just waiting for him to screw up, and my father got ticketed for selling alcohol to a minor, and failed to show up in court, due to transportation issues (his truck was stolen, and destroyed).

The gun was in a car. Therefore, while he may have had the right to own it, he did NOT have the right to carry it in the car.

I know that he was in control of the vehicle, thus responsible for the contents, but nothing was found, and he's not being charged with posessing the meds they seized. They know those pills are legally his, so they're aren't prosecuting him for posession, but they won't give them back anyway.

then file a complaint with the police.

 

[feioncastor]

Search incident to arrest

I read a few things about "Search Incident to Arrest", and what that seems to imply is that officers can legally arrest a suspect, before or during a search. They don't have to wait until the search is complete to officially place a suspect under arrest. But that doesn't say that they can search a suspect's vehicle without probable cause or a warrant.

then file a complaint with the police.

My father is a diabetic, and suffers from numerous other painful disorders. Without his medicine, his blood sugar levels fluxuate so fierecly that he's been incapacitated since the incident, and unable to make it to the police department.

The gun was in a car. Therefore, while he may have had the right to own it, he did NOT have the right to carry it in the car.

How can you be allowed to own a gun, but not allowed to carry it in a vehicle? We live in the middle of a city. The gun is for sport and hunting, obviously. We won't be doing sporting or hunting in the city, so to get to any place where we can safely fire a gun, we'd have to drive. How would we go about transporting a gun outside the city to the countryside without letting it enter a vehicle?

 

[BelizeBreeze]

Search incident to arrest

I read a few things about "Search Incident to Arrest", and what that seems to imply is that officers can legally arrest a suspect, before or during a search. They don't have to wait until the search is complete to officially place a suspect under arrest. But that doesn't say that they can search a suspect's vehicle without probable cause or a warrant.

Yes it does

My father is a diabetic, and suffers from numerous other painful disorders. Without his medicine, his blood sugar levels fluxuate so fierecly that he's been incapacitated since the incident, and unable to make it to the police department.

And I SAID file a complaint

How can you be allowed to own a gun, but not allowed to carry it in a vehicle? We live in the middle of a city. The gun is for sport and hunting, obviously. We won't be doing sporting or hunting in the city, so to get to any place where we can safely fire a gun, we'd have to drive. How would we go about transporting a gun outside the city to the countryside without letting it enter a vehicle?

you said GUN, NOT rifle. If the gun was in a case unloaded and in the truck then you may have a case.

 

[reyn562]

Prescription laws

Actually, here in Florida, and probably in most other states, there ARE prescription laws which require a person to keep medications in their original prescription bottles, and especially if he intends to travel with the medication. For the purpose of law to travel means to go anywhere outside the home. Every prescription dispense from the pharmacy often contain label or a paper of some sort, printed exactly the way is printed on the bottle. If one intends to travel with medication and put the medicine in a travel container, such as a pillbox, then the person needs to a company the pillbox with the label for each prescription the person has in that pillbox.

Absent this information, any medication that is not a company with a label is presumed to not have a prescription for it, and it is up to the patient to ensure there is a label and that there is a prescription for the medication.

They probably did not return to your dad the medication because most probably it was illegally carried in the first place by virtue of the fact that it was not in its proper pill bottle. In Florida they're very tough about this law, not only to prevent prescription fraud, but to prevent medication mixup, which can be harmful to the patient under the wrong circumstances.

This is why is an arrest is one thing, and conviction in court of law is another. Not having the proper medication in its properly labeled bottle is what is called prima facie evidence, meaning first face, that prescription fraud is being committed. But the submission of evidence later cancels the charge.

 

[feioncastor]

Amendment IV of the United States Constitution:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and 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."

As you're probably aware, the US Constitution is the sumpreme law of the land. No state or municipal laws can override it, under any circumstance. This amendment clearly states that without probable cause, a search can never be conducted.

Warrantless searches do take place; the officer who conducted the search can present probable cause to a judge after the fact, and secure a warrant, after the search (time and opportunity clause), but because no contraband was recovered from the vehicle, no warrant could be signed by a judge without probable cause.

I don't care what any judge, attorney, prosecutor, or cop thinks s/he knows. The bottom line is simple. The United State Constitution says probable cause is ALWAYS necesary to conduct a search.

The officer who ordered the search had no right to do so. In Yavapai county, we've had serious problems with our police officers. They're bullies, and power trippers.

you said GUN, NOT rifle. If the gun was in a case unloaded and in the truck then you may have a case.

Well, actually, it was a pistol. And here in Arizona, you can legally own a pistol (handgun). I know in New York and such, you can't own handguns, but here in Arizona, you can. It was unloaded, and it wasn't concealed. It wasn't in case, because, well, my dad didn't own a case for his pistol.

 

[reyn562]

A pistol is a handgun, and there are very strict rules associated in the transport of such weapons. In order to carry a handgun in a car you must have, in most states, a concealed weapons permit. If you intend to travel with a gun in the car, you must have a weapons permit. Ordinary citizens have the right to have a weapon on their person, but only to protect their home and real property. Handguns are generally not used for sports or hunting -- shotguns and rifles are, and there are different rules for those types of weapons.

 

[reyn562]

Yes, in all 50 states, provided you are not convicted felon or someone who has been adjudicated mentally ill, or someone who does not have any domestic violence injunctions against him, you have the legal right to own a pistol. But you do not have the legal right to transport this weapon, uncased, and without the proper permits for having a concealed weapon.

I hope that this lesson is not something you just learned, but that you can pass on to others in hopes that they don't go to jail for something like this. It is up to you to learn the proper rules on how to carry weapons.

 

[feioncastor]

Yes, in all 50 states, provided you are not convicted felon or someone who has been adjudicated mentally ill, or someone who does not have any domestic violence injunctions against him, you have the legal right to own a pistol. But you do not have the legal right to transport this weapon, uncased, and without the proper permits for having a concealed weapon.

I hope that this lesson is not something you just learned, but that you can pass on to others in hopes that they don't go to jail for something like this. It is up to you to learn the proper rules on how to carry weapons.

Agreed, and this is new information to me. I was not aware of restrictions for transporting a firearm, but I'll certainly contact the necesarry office in the area and obtain a copy of the laws regarding firearms.

You're right that rifles and shotguns are the more likely choice for hunting and sport, but we would only use the pistol every few months. We'd go in the woods, set up a few soda cans, and shoot them down, so it was entirely for sport. I know that has no relevance to the issue at hand, but it's a fun thing to pass the time. When used responsibly, and within the law, firearms can be a heck of a lot of fun.

However, I'd still like to know about the search. How can they search the vehicle without probable cause? The US Constitution, a document which overrides any other in our country, guarantees that no searches can be conducted without probable cause, under any circumstance. In order for a warrant to be obtained, there must be probable cause. I know about warrantless searches, based on time and opportunity, but in those cases, a warrant must be obtained after the search in order for the items found to be held up in court. In my father's case, no warrant has been secured even after the search because there was no probable cause, so legally, they can't confiscated his medications because they legally had no business looking through the vehicle in the first place...

 

[CDR Benson USN]

However, I'd still like to know about the search. How can they search the vehicle without probable cause? The US Constitution, a document which overrides any other in our country, guarantees that no searches can be conducted without probable cause, under any circumstance. In order for a warrant to be obtained, there must be probable cause. I know about warrantless searches, based on time and opportunity, but in those cases, a warrant must be obtained after the search in order for the items found to be held up in court. In my father's case, no warrant has been secured even after the search because there was no probable cause, so legally, they can't confiscated his medications because they legally had no business looking through the vehicle in the first place...

Before you start trotting out the Constitution as the reference for your argument, it would behoove you to actually understand it.

The Fourth Amendment to the Constitution protects the people from unreasonable search and seizure. The courts have long recognised the facts that the exigencies of life in action and the safety of law-enforcement officers and just plain common sense force exceptions to the codefied requirements contained within the Constitution.

The part of the Constitution you must have missed was the fact that there are thirteen exceptions to the search warrant requirement under the Fourth Amendment. One of these--search incident to arrest--is the very thing the other responders to your posts have been trying to get through to you, so far without result (mainly, I suspect, because you don't want to hear anything that doesn't support your view).

When a lawful arrest is effected (as was in the case of your father, under a proper warrant issued for his arrest for his failure to appear), a peace officer may reasonably search the person arrested and the area within such person's immediate presence for the purpose of:
(1) protecting the officer from attack;
(2) preventing the person from escaping;
(3) discovering and seizing the fruits of the crime; or
(4) discovering and seizing any persons, instruments, articles, or things which may have been used in the commission of or which may constitute evidence of the offense.

Under such an auspice, police officers may thoroughly search both the arrestee and the immediate area contemporaneous, or nearly so, to his arrest. The area immediate to the arrestee--also known as the "lunge area"--is permitted to be searched since the suspect conceivably had an opportunity to conceal evidence or a weapon or a means of escape just prior to his arrest. The fact that your father may not have done any of these things is not a defence; the authority to search the immediate area is blanket and attaches to the arrest.

Since you seem to be a person who dissects things, looking for minor loopholes, let me add some additional case law here.

In U.S. v. Robinson (1973), the Supreme Court extended "search incident to arrest" to include automobiles occupied by an arrestee. So search incident to arrest attached in your father's case.

In U.S. v. Roe (1974), the Supreme Court ruled that an arrestee does not have to actually be inside his car at the time of arrest for search incident to arrest to attach; the suspect merely has to have the vehicle in his possession or control at the scene of the arrest. Thus, if the officers had your father exit the car and placed him under arrest while he was standing outside it, the officers are still permitted to search the car incident to your father's arrest.

And as another responder noted, the car does not have to be registered to your father for search incident to arrest to apply; he merely had to be in control of it, or simply sitting in it at the scene of the arrest.

In New York v. Bolton (1981), the Supreme Court addressed the issue of search incident to arrest even after the arrestee has been handcuffed or otherwise restrained (and, thus, could not obtain a weapon or destroy evidence). The Supreme Court ruled that a police officer can search the vehicle incident to arrest so long as:
(1) there was lawful custodial arrest (which there was in your case, since a warrant had been issued for your father's arrest);
(2) the search was contemporaneous to arrest (which, by your own account, it was; incidentally, police are permitted, for their own safety, to ensure the suspect is appropriately restrained before commencing the search);
(3) the arrestee was an occupant of the vehicle just prior to the arrest; and
(4) the search is limited to the passenger area of the vehicle. That includes under the seats, in the armrest compartment, the glove compartment (if it is not locked), the seat pouches, and anywhere else that someone sitting where your father was could have reached, front and back seats.

If this doesn't address your question, then it is beyond your understanding--or you simply don't want to understand.

Incidentally, in passing, I hope you've grasped the fact that the law is complex and mutable. It takes more than just a quick review of the Constitution or a correspondence course to understand the law--and the search incident to arrest exclusion is one of the most basic elements. That's why one has to have an undergraduate degree then slave through three years of law school before he can be called a lawyer.

As for law enforcement, most veteran police officers, within the narrow corridor of Fourth Amendment law, have even a better grasp of search and seizure, mainly because they have to apply it so frequently and on the spot, without the luxury of consulting a lawbook first.

What I am saying is, when the attorneys and the cops respond to your question, it's a sure bet that their knowledge is more informed than yours, otherwise you wouldn't have posted here. It's sheer absurdity to come to the experts for advice, then argue with them as to why they're wrong.


Commander Benson

 

[BelizeBreeze]

Until today, I wouldn't give you two cents for swabies.

I now stand corrected.

Welcome to the forum Commander. I hope you stick around for awhile.

Signed,
USAF