• FreeAdvice has a new Terms of Service and Privacy Policy, effective May 25, 2018.
    By continuing to use this site, you are consenting to our Terms of Service and use of cookies.

Probably Cause Question

Accident - Bankruptcy - Criminal Law / DUI - Business - Consumer - Employment - Family - Immigration - Real Estate - Tax - Traffic - Wills   Please click a topic or scroll down for more.

Legal23

Junior Member
Okay I am a resident of Florida, one of the harshest states in regards to Marijuana prosecution and have some questions in reference to my recent notice to appear and investigation; there were no arrests and no fines given at the time I was pulled over, only the notice to appear.

Details on my case:
-19yrs. old
-Pulled over for tag light being out
-no priors
-presented my information (licence and insurance) in a timely mannor
-no gang/distribution/transportation involvement, and caught with <20g *misdemenoir, and possession of paraphenalia (2 pipes, one packed with a TINY bowl... less than .5 grams)

What Happened:
-While driving under the speed limit down a 45mph road in my town with my Girlfriend I was pulled over by an officer for a bad tag light. The first officer was accompanied by a second driving the dodge challengers they recieve for meeting ticket quotas, and a third officer. I pulled over into a elementary school parking lot and was questioned by the first officer whether I knew my light was out, I was asked to exit the vehicle and was shown the light. Two officers were with me at the time and explained the problem (bad light) and I explained that I had bought the car from an officer and had spent a lot of money on fixing it...
out of nowhere the officer who pulled me over asked if he could search my vehicle and the other officer (dodge challenger officer) said it was only because they are part of the drug task force (a drug division of some sort) and that this road was heavily sued for drug trafficing, I said no and said I'm not trying to be rude I just wanted to deal with the tag and get home, he asked me where I lived and I told him. He then began to say if I did not consent they would call drug dogs, I still said no and he went to his vehicle. When he returned he said that if I consented they could help me, but if the dogs got there they could not. I also answered when asked if there were drugs/substances/something to that effect in the car with "no." I asked if the drogs were coming for a mere tag light and he said they could, out of fear and pressure (I get stressed very easily, gf says I have an anxiety disorder) that they could search it and that there was marijuana in the car. I was very compliant from this point and presented the officer with everything, as well as volunteered to be patted down. They made my girlfriend empty her pockets and everything, as well as search the car. We were told to sit on the curb while the checked and did as told.
-I was given a notice to appear and told that this did not mean I was pleaing guilty to anything.

*After all was said and done the officer explained to us that when he was young he did the same thing, and that if your gunna smoke your gunna smoke, but to stay outa trouble (really nice guy). BUT when I asked what gave him probable cause he replied with "YOU WERE NERVOUS and said NO"

Here lies my question:
I have done a lot of reading and read that an officer cannot detain you longer than it would take for the offense to take (tag light). So how could he bring dogs into the situation on probable cause of "being nervous." I read that nervous behavior alone is not grounds for probable cause. Again I had no priors, no affiliation with any illegal activity, and explained that being pulled over makes you nervous.
I have a court hearing and do not want to be rude to a judge, should I bring any of this up?
Do I have grounds for dismissall?
Is my case worthy of the exclusionnary rule?
I have no idea what to do on my court date (never been to court) besides dress nice, shave, and show up.

ALL advice would be greatly appreciated, appoligize for the length of this post but wanted to be thurough.
 


Legal23

Junior Member
Officer also incorrectly issued the ticket to a third (as in Joe Bob the third) when I am a second (as in Joe Bob the second).
 

Mass_Shyster

Senior Member
It may be possible to get the evidence suppressed as the result of an improper search and/or coerced consent. I doubt you can properly do it on your own. You'll need to file an motion to suppress along with a memorandum of law in support of that motion. Before that, you'll need to file for discovery to get all the information from the police.

I suggest an attorney.
 

Zigner

Senior Member, Non-Attorney
It may be possible to get the evidence suppressed as the result of an improper search and/or coerced consent.
Did you read the same thing the rest of us did? The search was consensual and there was no coercion.
 

Mass_Shyster

Senior Member
  • officer who pulled me over asked if he could search my vehicle
  • I said no
  • He then began to say if I did not consent they would call drug dogs
  • I still said no
  • he said that if I consented they could help me, but if the dogs got there they could not.
  • out of fear and pressure (I get stressed very easily, gf says I have an anxiety disorder) that they could search it and that there was marijuana in the car.
Sounds to me like an argument for coersion can be made.
 

Zigner

Senior Member, Non-Attorney
Sounds to me like an argument for coersion can be made.
The police told him that they were going to call a dog in - he agreed to the search. Where is the coercion?

Sure, an argument could be made for coercion - same as an argument could be made that it was really this guy's doppelganger and the OP really wasn't anywhere near the scene at the time.
 

tranquility

Senior Member
Sounds to me like an argument for coersion can be made.
Schneckloth v. Bustamonte, 412 US 218 (1973)

The precise question in this case, then, is what must the prosecution prove to demonstrate that a consent was "voluntarily" given.
Similar considerations lead us to agree with the courts of California that the question whether a consent to a search was in fact "voluntary" or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances. While knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent. As with police questioning, two competing concerns must be accommodated in determining the meaning of a "voluntary" consent�the legitimate need for such searches and the equally important requirement of assuring the absence of coercion.

In situations where the police have some evidence of illicit activity, but lack probable cause to arrest or search, a search authorized by a valid consent may be the only means of obtaining important and reliable evidence.[9] In the present case for example, while the police had reason to stop the car for traffic violations, the State does not contend that there was probable cause to search the vehicle or that the search was incident to a valid arrest 228*228 of any of the occupants.[10] Yet, the search yielded tangible evidence that served as a basis for a prosecution, and provided some assurance that others, wholly innocent of the crime, were not mistakenly brought to trial. And in those cases where there is probable cause to arrest or search but where the police lack a warrant, a consent search may still be valuable. If the search is conducted and proves fruitless, that in itself may convince the police that an arrest with its possible stigma and embarrassment is unnecessary, or that a far more extensive search pursuant to a warrant is not justified. In short, a search pursuant to consent may result in considerably less inconvenience for the subject of the search, and properly conducted, is a constitutionally permissible and wholly legitimate aspect of effective police activity.
Holding:
Our decision today is a narrow one. We hold only that when the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact 249*249 to be determined from all the circumstances, and while the subject's knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent.[38] Because the California court followed these principles in affirming the respondent's conviction, and because the Court of Appeals for the Ninth Circuit in remanding for an evidentiary hearing required more, its judgment must be reversed.
In other words, I agree with Stevef in theory. In the facts of the case showing not coercion, the court found:
While on routine patrol in Sunnyvale, California, at approximately 2:40 in the morning, Police Officer James Rand stopped an automobile when he observed that one headlight and its license plate light were burned out. Six men were in the vehicle. Joe Alcala and the respondent, Robert Bustamonte, were in the front seat with Joe Gonzales, the driver. Three older men were seated in the rear. When, in response to the policeman's question, Gonzales could not produce a driver's license, Officer Rand asked if any of the other five had any evidence of identification. Only Alcala produced a license, and he explained that the car was his brother's. After the six occupants had stepped out of the car at the officer's request and after two additional policemen had arrived, Officer Rand asked Alcala if he could search the car. Alcala replied, "Sure, go ahead." Prior to the search no one was threatened with arrest and, according to Officer Rand's uncontradicted testimony, it "was all very congenial at this time." Gonzales testified that Alcala actually helped in the search of the car, by opening the trunk and glove compartment. In Gonzales' words: "[T]he police officer asked Joe [Alcala], he goes, `Does the trunk open?' And Joe said, `Yes.' He went to the car and got the keys and opened up the trunk." Wadded up under the left rear seat, the police officers found three checks that had previously been stolen from a car wash.
But, to see the whole discussion on what "voluntary" means, read the case. Would the OP win? No. Why do I say that? Because he would need a fine lawyer and some experts to prove coercion on these facts. True, a case could be made even though the OP's knowledge he could refuse is a problem. I don't know if it is a winner, but I do know it will cost a lot to try to prove up.
 

Mass_Shyster

Senior Member
Would the OP win? No. Why do I say that? Because he would need a fine lawyer and some experts to prove coercion on these facts. True, a case could be made even though the OP's knowledge he could refuse is a problem. I don't know if it is a winner, but I do know it will cost a lot to try to prove up.
I don't think you would need experts. It's a motion to suppresss - the lawyers get to argue the facts at hand and the judge makes the determination if, based on the facts and argument, the consent was coerced.

I couldn't find a case exactly on point, but I found a couple that were very similar. One held that having to wait for the dog was not coersion because the consent search or dog search were equally unpleasant alternatives. This would be distinguishable if the officer did not have the right to make the defendant wait for the police dog. Since OP denied consent several times, the eventual consent could be claimed as duress.

The fact that OP "seemed nervous" may be enough for the police to make the suspect wait a short time for a dog, in which case the consent would likely be held valid.

These cases all turn on the "totality of the circumstances", and how well the lawyers argue their side. A good defense attorney up against an overworked and unprepared prosecutor do a lot for OP's position.

I will admit that my original response was based on Massachusetts cases, where it would be almost a slam-dunk for the defendant. Article 14 of the Massachusetts Declaration of Rights provides WAY more protection to the defendant than the 4th Amendment.
 

tranquility

Senior Member
I don't think you would need experts. It's a motion to suppresss - the lawyers get to argue the facts at hand and the judge makes the determination if, based on the facts and argument, the consent was coerced.

I couldn't find a case exactly on point, but I found a couple that were very similar. One held that having to wait for the dog was not coersion because the consent search or dog search were equally unpleasant alternatives. This would be distinguishable if the officer did not have the right to make the defendant wait for the police dog. Since OP denied consent several times, the eventual consent could be claimed as duress.

The fact that OP "seemed nervous" may be enough for the police to make the suspect wait a short time for a dog, in which case the consent would likely be held valid.

These cases all turn on the "totality of the circumstances", and how well the lawyers argue their side. A good defense attorney up against an overworked and unprepared prosecutor do a lot for OP's position.

I will admit that my original response was based on Massachusetts cases, where it would be almost a slam-dunk for the defendant. Article 14 of the Massachusetts Declaration of Rights provides WAY more protection to the defendant than the 4th Amendment.
Without an expert saying the OP has special sensitivity and an "anxiety disorder", I think there is zero chance. Cops can ask more than once. They can threaten dogs too.
 

Mass_Shyster

Senior Member
They can threaten dogs too.
They need a legitimate reason to detain the perp while they wait for the dogs. If they didn't have one, then the "unpleasant alternatives" argument doesn't hold up.

This is where the "totality of the circumstances" part comes in. OP stated he wanted to leave. Police said no, and continued to detain him until he consented or they brought in the dogs.

My argument would be that the detention was an unlawful seizure - 4th amendment violation.

Of course, this argument fails of the dogs were already at the scene, or moments away.
 

OHRoadwarrior

Senior Member
I'm sure OP's girlfriend diagnosing him with an anxiety disorder is somewhat based on their personal life, not medical training.:cool:
 

tranquility

Senior Member
Let's review:
-While driving under the speed limit down a 45mph road in my town with my Girlfriend I was pulled over by an officer for a bad tag light. The first officer was accompanied by a second driving the dodge challengers they recieve for meeting ticket quotas, and a third officer. I pulled over into a elementary school parking lot and was questioned by the first officer whether I knew my light was out, I was asked to exit the vehicle and was shown the light. Two officers were with me at the time and explained the problem (bad light) and I explained that I had bought the car from an officer and had spent a lot of money on fixing it...
out of nowhere the officer who pulled me over asked if he could search my vehicle and the other officer (dodge challenger officer) said it was only because they are part of the drug task force (a drug division of some sort) and that this road was heavily sued for drug trafficing, I said no and said I'm not trying to be rude I just wanted to deal with the tag and get home, he asked me where I lived and I told him. He then began to say if I did not consent they would call drug dogs, I still said no and he went to his vehicle. When he returned he said that if I consented they could help me, but if the dogs got there they could not. I also answered when asked if there were drugs/substances/something to that effect in the car with "no." I asked if the drogs were coming for a mere tag light and he said they could, out of fear and pressure (I get stressed very easily, gf says I have an anxiety disorder) that they could search it and that there was marijuana in the car. I was very compliant from this point and presented the officer with everything, as well as volunteered to be patted down. They made my girlfriend empty her pockets and everything, as well as search the car. We were told to sit on the curb while the checked and did as told.
-I was given a notice to appear and told that this did not mean I was pleaing guilty to anything.
I don't see this stop being unreasonably prolonged--especially considering the OP's nervousness. See also: U.S. v. Farrior, 535 F.3d 210 (2008).

I don't even see where the officer had the OP's license in hand before having some suspicion that he wanted to get consent, and got said consent, to search for.

Info edit:
To determine the proper length of the stop:
Whitfield v. State, 33 So. 3d 787 (2010)
There is no issue in the case concerning the propriety of the traffic stop. A traffic violation creates probable cause to stop the driver of a vehicle. See McNeil v. State, 656 So. 2d 1320 (Fla. 5th DCA 1995). Once a vehicle is lawfully stopped, a law enforcement officer may conduct an investigation reasonably related in scope to the circumstances that justified the traffic stop. This investigation may include asking the driver for an operator's license, insurance and registration. See State v. Robinson, 756 So. 2d 249 (Fla. 5th DCA 2000). Also, the officer may run a computer check to determine whether the vehicle involved in the stop has been stolen and whether the driver has any outstanding warrants. See State v. Brooks, 662 So. 2d 440, 440-41 (Fla. 5th DCA 1995) (Sharp, J., dissenting.). However, absent an articulable suspicion of criminal activity, the time an officer takes to issue a citation should last no longer than is necessary to make any required license or registration checks and to write the citation. Maxwell v. State, 785 So. 2d 1277 (Fla. 5th DCA 2001) (citing Cresswell v. State, 564 So. 2d 480 (Fla. 1990)); Sands v. State, 753 So. 2d 630 (Fla. 5th DCA 2000). See also Illinois v. Caballes, 543 U.S. 405, 407 (2005).
and:
In Sparks v. State, 842 So. 2d 876, 877 (Fla. 2d DCA 2003), the deputy had finished writing a citation for driving with a broken headlight before the canine unit arrived twenty minutes after the initial stop, and the court found an illegal detention. Similarly, in Williams v. State, 869 So. 2d 750 (Fla. 5th DCA 2004), an officer stopped Williams for a traffic violation, issued a citation thirty-five minutes later and then conducted a dog sweep, leading to Williams' arrest. The court found the delay to be unreasonable, and further said that, even if the time had been reasonable, because the officer had already issued the citation before commencing the dog sniff, the detention for the sniff was illegal. See State v. Brown, 691 So. 2d 637 (Fla. 5th DCA 1997) (officer permitted to run drug sniff until traffic stop concluded, unless unreasonably prolonged to do so). See also Nulph v. State, 838 So. 2d 1244 (Fla. 2d DCA 2003).
As previously cited Florida cases demonstrate, Florida has not recognized a rule that a completed traffic stop can be extended to conduct a dog sniff search, even if the delay is de minimis. In Florida, a sniff search can be conducted before the traffic stop has been concluded, but not after. See Brown, 691 So. 2d at 638. This is a desirable bright-line test, not a subjective measure like de minimis that can be applied inconsistently.[10] A bright-line rule is preferable for several reasons. First, it eliminates the problem of figuring out how long a traffic stop should have taken and how long is "unreasonably prolonged." See Tracey Maclin, Police Interrogation During Traffic Stops: More Questions Than Answers, 31 Champion 34, 37-38 (2007). Even trickier is deciding how much time is de minimis.[11] If a citizen has completed the ordeal of a traffic stop and is entitled to leave, the citizen's view of de minimis is likely very different from that of law enforcement or a judge sitting in his chambers. Innocent or guilty, a sniff search is not nothing. As Professor LaFave has outlined in his treatise on search and seizure law,[12] even if the time spent stalling until the dog arrives is not counted, a dog sniff search does take time to conduct, and is rarely the benign, seamless event that the court dealt with in Caballes. As in this case, passengers are ordered from the vehicle, leaving the driver and passengers exposed to the dangers of standing on the shoulder of the roadway. Although in the mind's eye, these events occur in daylight and good weather, that is not necessarily the case. In this case, for example, although it was daylight, it was raining. The temperature might be very cold or very hot. In Florida, during much of the year, thirty minutes spent standing on the shoulder of a roadway exposed to the sun and heat can easily be an adverse health event. It is a humiliating and, for some, a frightening experience. Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 9.3 (4th ed.) (2009). Sniff searches are not free from error,[13] both because of the limitations of the canines and because drug residue can often be found on common items, like currency.[14] Even in innocent circumstances, such a search can lead to further intrusive, time-consuming and destructive searches. Although a canine drug sniff may be permissible, if conducted while the motorist is already detained for a traffic ticket, to extend the detention to conduct a sniff search in order to obtain probable cause for a search where none otherwise exists, is unjustified.
 
Last edited:

Legal23

Junior Member
Yea the last portion of your comment "to conduct a sniff search in order to obtain probable cause for a search where none otherwise exists, is unjustified," was a factor in my original question.
Also another person stated that they didn't see when the officer had my license and so on, I said I presented both right away when asked (before agreeing to the search). I wasn't overly nervous, or requesting to leave immediatly, I was very compliant and polite (the officer said I had been very compliant).
The coercion aspect sounds great to me, that is exactly what I felt was going on.

+I also wrote down the entire nights details when I got home from the event, I can present that here as well.

The officers found stuff, that's undeniable, my only question was if my search was illegal in some way or infringed on my rights...
Should I just shut up and take what the judge gives me, as in don't bring anything up?
Will my court date be a full out trial, or one of those where it's just a few people (I read about this somewhere, like a prosecuter, me, and then a judge)

Also back to my original point, if I had no priors, no signs of drug smuggling, nothing, how could the officer even present the question of searching my vehicle?
 

ERAUPIKE

Senior Member
Yea the last portion of your comment "to conduct a sniff search in order to obtain probable cause for a search where none otherwise exists, is unjustified," was a factor in my original question.
Also another person stated that they didn't see when the officer had my license and so on, I said I presented both right away when asked (before agreeing to the search). I wasn't overly nervous, or requesting to leave immediatly, I was very compliant and polite (the officer said I had been very compliant).
The coercion aspect sounds great to me, that is exactly what I felt was going on.

+I also wrote down the entire nights details when I got home from the event, I can present that here as well.

The officers found stuff, that's undeniable, my only question was if my search was illegal in some way or infringed on my rights...
Should I just shut up and take what the judge gives me, as in don't bring anything up?
Will my court date be a full out trial, or one of those where it's just a few people (I read about this somewhere, like a prosecuter, me, and then a judge)

Also back to my original point, if I had no priors, no signs of drug smuggling, nothing, how could the officer even present the question of searching my vehicle?
"to conduct a sniff search in order to obtain probable cause for a search where none otherwise exists, is unjustified," would only be an issue if there was a sniff search conducted. You voluntarily told the officers, not only that they could search, that you were in possession of Marijuana. You could argue that the search was unjust, the officers will be called to court and they also wrote down the events. Their report will be backed up by video evidence and physical evidence. You have a guilty man's final plea for clemency as he attempts to game the system. Who do you think will win that argument?

To address your original point, one good indication of drug smuggling is admitting to the possession of drugs. The officer has the right to request to search your vehicle, you could have continued to decline.
 

Find the Right Lawyer for Your Legal Issue!

Fast, Free, and Confidential
data-ad-format="auto">
Top