Question about 148(A)(1) PC

[grishid]

What is the name of your state (only U.S. law)? California.

Please answer if you are sure is correct.
I was a passenger in a vehicle, can a police officer ask me to step out the vehicle since he thinks i might be under the influence of a controlled substance and conduct an investigation. conducting pat search and ordering me to sit on the curb and asking me to close my eyes without explaining how the investigation process go or to why he wants me to close my eyes. As well as arresting me and taking me to police station if i do not close my eyes since i did not trust the officer's motive.

Pretty much the question is, can he arrest me because i did not close my eyes? lol so funny.

 

[tranquility]

Pretty much the question is, can he arrest me because i did not close my eyes? lol so funny.

He has a right to conduct a reasonable investigation if he had a reasonable suspicion you were under the influence of a controlled substance. I assume he wanted to see if you swayed without the visual clue of sight as part of that investigation. If you refused, it is possible you obstructed his investigation.

He would need to prove he gave you clear direction about what to do. That he had a reasonable suspicion, which was more than a mere hunch, that you were under the influence. And, that having you close your eyes was a part of a reasonable investigation. (In that he has training and/or experience that the sitting close your eyes test is relevant.)

However, one does not have to submit to FST tests when the officer believes you are driving under the influence. That's because it is considered testimonial in nature and we are not required to testify against ourselves. The right to remain silent is not just to shut up.

The legal question (which I don't know the answer to) is if telling you to close your eyes is simply physical or is it testimonial. Unless there's a good case on point, I bet they won't want to charge you.

Other possible defenses would be that you were in fear of what was going to happen if you closed your eyes. For example, if the officer was very aggressive in his actions previously.

But, in any crime situation, you need an attorney. I think you have a case here. Even if it got in front of a jury, the prosecution would have to really spin you as a bad guy to get me to vote you should be committed of a crime if you didn't close your eyes.

 

[davew128]

He has a right to conduct a reasonable investigation if he had a reasonable suspicion you were under the influence of a controlled substance. I assume he wanted to see if you swayed without the visual clue of sight as part of that investigation. If you refused, it is possible you obstructed his investigation.

He would need to prove he gave you clear direction about what to do. That he had a reasonable suspicion, which was more than a mere hunch, that you were under the influence. And, that having you close your eyes was a part of a reasonable investigation. (In that he has training and/or experience that the sitting close your eyes test is relevant.)

However, one does not have to submit to FST tests when the officer believes you are driving under the influence. That's because it is considered testimonial in nature and we are not required to testify against ourselves. The right to remain silent is not just to shut up.

Well let's call this for what it is: Arrest for contempt of cop, ok?

As a passenger in a vehicle, OP is under no obligation to submit to any type of FST whatsoever and failure to submit cannot under the light most beneficial to the state be considered impeding an officer's investigation. As you yourself said, one cannot be forced to testify against oneself and the letters B and S flash brightly on any report where someone is arrested in this circumstance.

 

[grishid]

Thanks for the resopond. I do have an attorney of course. As to why i did not close my eyes was that I did not trust what he would have done to me or i did not trust him or whatever just because he is a police officer. To my knowledge I did not obstruct to his investigation just because I refused to close my eyes. However, I believed he was harrasing me in the first place where he shouldn't even approach me and ask me out as me being a passenger and being free private citizen. Even the fact if i was under the influence, he still can not order me out and start testing me just because since I am not in public street or driving that could be in danger to myself or somenone else.

Also, when he arrested me, he did not state why he is arresting me and what charge he is arresting me for. After taking me to a police station he still harrased me put me in a dark cell asking me to give another test. I have gone alot and alot of harrasement which would be lot of in writings. After all they noticed im clean they decided to charge me with simply obstructiong or resisting an officer lol I just just to cover their ass. But again the main thing that he did arrest me in his report was that saying i did not cooaporate with the investigation.

To my knowledge I am not obligated to conduct field test plus being a passenger not even driving or walking public street. When u mention u would think I might have something to hide, there is no law states if i do not do then i am guilty of a crime or im highting something. But there is a law that states i am not obligated anything the officer say or do on the field.

I would be ok if the officer takes me to police station, and conduct tests but after its clear that I am clean he can not give me a totally different charge just because he looked stupid front of his seargent or fellow officers. See what im going?

 

[tranquility]

Well let's call this for what it is: Arrest for contempt of cop, ok?

Duh.

As a passenger in a vehicle, OP is under no obligation to submit to any type of FST whatsoever and failure to submit cannot under the light most beneficial to the state be considered impeding an officer's investigation.

But, if the officer develops a reasonable suspicion the passenger is under the influence of a controlled substance he is allowed to do a reasonable investigation. If the officer felt the OP was under the influence of heroin, he could certainly look for fresh needle marks. If the OP tried to prevent it, it would be considered impeding.

To my knowledge I did not obstruct to his investigation just because I refused to close my eyes.

Yet you knew he was an officer in the performance of his duties. The question is if he had a legal right to ask you to close your eyes. I believe the key will be as to if closing your eyes were testimonial in nature. (And, if he can articulate why he felt you were on drugs.)

However, I believed he was harrasing me in the first place where he shouldn't even approach me and ask me out as me being a passenger and being free private citizen.

It depends. You did not give any facts regarding the development of the reasonable suspicion. Was the car stopped for a traffic violation? (Then, by case law the police can act as though you were detained as well.) Were you in a parked car in the night? (Then the police can look into what was going on in there.) And, of course, they always have the right to approach and ask questions. If in doing the thing all citizens have the right to do he develops facts to give him a reasonable suspicion you are under the influence of a controlled substance, he can do a reasonable investigation to see if it is true.

Even the fact if i was under the influence, he still can not order me out and start testing me just because since I am not in public street or driving that could be in danger to myself or somenone else.

You were almost assuredly in public and the question would be is if you could care for yourself or others and not if you were a "danger" to yourself or others. Also, if the officer had articulable facts, based on his training and experience that you were under the influence of a controlled substance, would give him a reasonable suspicion (and the right to detain you) to do a reasonable investigation as to if you were in possession of those substances.

 

[grishid]

Ok look. We were traveling then a cop pulled us over on the report he stated he stopped us for obscured rear lisence place. I guess that's the tag he is reffering to like obstructed tags. Which is was bs since they stopped for tinted windows but we had none. Officer completetly lied on the report but let's play by the report what it says.

Officer stated stopped for obstructed lisense tags which clearly show and i have pictures to proof it. I dont care about that part, but when u menioned I am also detained since the cop stopped for traffic violation. Technicaly passenger is still a free man and not being detain. I can any time open the door and walk away if i chose to but i do not since the cop might be scared and think i might want to harm him so i sit in the vehicle. Any reasonable person would do that. know the partner comes to my window orders me to pull it down, i do it, he says your eyes are weird but on the report it says that i had dry lips and i was talking fast which gave the officer i might be under the influence then he asked me out. Now let's look it up, dry lips and talking fast is not a reasonable suspecious or cause to be lieve this guy might be under the influence of controlled substance. He needs more than that. So why did he ask me out in the first place and plus when i asked what are u conductiong is this a test or whatever he said investigation... wtf is an investigation now his is not explaining any prosedure to me.

So the question is are you sure, he had reasonable suspecious or cause to believe i was under controlled substance? are you sure this arrest was legitimate? especially when i came out clean, his traning or assumtion was incorrect. See what i mean?

 

[tranquility]

but when u menioned I am also detained since the cop stopped for traffic violation. Technicaly passenger is still a free man and not being detain. I can any time open the door and walk away if i chose to

Um..no.

Arizona v. Johnson No. 07-1122. Supreme Court case. (I can't find the full cite. 555 U.S. ...1/26/2009) [emphasis mine]

(a) Terry established that, in an investigatory stop based on reasonably grounded suspicion of criminal activity, the police must be positioned to act instantly if they have reasonable cause to suspect that the persons temporarily detained are armed and dangerous. 392U. S.,at 24. Because a limited search of outer clothing for weapons serves to protect both the officer and the public, a patdown is constitutional. Id., at 23–24, 27, 30–31. Traffic stops, which “resemble, in duration and atmosphere, the kind of brief detention authorized in Terry,” Berkemer v. McCarty, 468 U. S. 420 , are “especially fraught with danger to police officers,” Michigan v. Long, 463 U. S. 1032 , who may minimize the risk of harm by exercising “ ‘unquestioned command of the situation,’ ” Maryland v. Wilson, 519 U. S. 408 . Three decisions cumulatively portray Terry’s application in a traffic-stop setting. In Pennsylvania v. Mimms, 434 U. S. 106 (per curiam), the Court held that “once a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment ,” id., at 111, n. 6, because the government’s “legitimate and weighty” interest in officer safety outweighs the “de minimis” additional intrusion of requiring a driver, already lawfully stopped, to exit the vehicle, id., at 110–111. Citing Terry, the Court further held that a driver, once outside the stopped vehicle, may be patted down for weapons if the officer reasonably concludes that the driver might be armed and dangerous. 434 U. S., at 112. Wilson, 519 U. S., at 413, held that the Mimms rule applies to passengers as well as drivers, based on “the same weighty interest in officer safety.” Brendlin, 551 U. S., at 263, held that a passenger is seized, just as the driver is, “from the moment [a car stopped by the police comes] to a halt on the side of the road.” A passenger’s motivation to use violence during the stop to prevent apprehension for a crime more grave than a traffic violation is just as great as that of the driver. 519 U. S., at 414. And as “the passengers are already stopped by virtue of the stop of the vehicle,” id., at 413–414, “the additional intrusion on the passenger is minimal,” id., at 415. Pp. 5–7.

 

[tranquility]

As to the rest, I have already described the legal issues. The factual ones as to what the police believed and why and/or if they were reasonable is for the fact finder.

 

[grishid]

ok see it says "IF" the officer suspects or have reasonable suspensions or probable cause to believe that the passenger is armed and dangerous. Or believe that the passenger is has committed a crime or was about to commit a crime. The question is, what is a "BEST" probable cause or reasonable suspicious for the officer to believe that the passenger itself commuting or commuted or about to commit a crime when he is just sitting there. Which is in this case officer thought that passenger was under the influence of controlled substance. Because at that time the passenger could also be tired, with red eyes let's say or is under different prescribed medication or etc.

Just because the guy itself is talking fast, or has dry lips like most ppl do but at that time i didn't but i go what offer says on the report of course he has to bs something to make legitimate reason. Anyways, so those specific reasons are not enough probable cause or reasonable suspicious for the officer to start investigation a real crime.

But when it comes to patting down or pat search the officer needs again a good reasonable suspicious to believe that the guy has weapons or something he can use to obstruct the investigation or harm anyone. Which means the guy has to have baggy pants, bulges, etc. but if the guy is simply wearing a jeans with no bulges, and a button up dress shirt, then the officer has not enough reasonable suspicious to believe that the guy might be dangerous.

So the question really here, what is a good probable cause in this case or reasonable suspicious for officer to believe that any guy could be under the influence of "CONTROL SUBSTANCE". Because if an officer dislike someone he can make up and say oh he has dry lips, was talking fast which could be some of the symptoms of being under the influence of control substance. See where im going with this?

 

[davew128]

But, if the officer develops a reasonable suspicion the passenger is under the influence of a controlled substance he is allowed to do a reasonable investigation. If the officer felt the OP was under the influence of heroin, he could certainly look for fresh needle marks. If the OP tried to prevent it, it would be considered impeding.

You would need a lot more in my eyes before a justification exists to search a person's body to that level. That's well beyond a Terry Stop at that point.

You were almost assuredly in public and the question would be is if you could care for yourself or others and not if you were a "danger" to yourself or others. Also, if the officer had articulable facts, based on his training and experience that you were under the influence of a controlled substance, would give him a reasonable suspicion (and the right to detain you) to do a reasonable investigation as to if you were in possession of those substances.

You yourself said a driver cannot be compelled to submit to a FST. Why should a passenger? You'll note that our OP was not charged with possession of a controlled substance. Moreover I think it is of dubious belief that one can be charged with obstruction for failure to cooperate with an investigation against oneself. This isn't destruction of evidence. It's failure to cooperate. In my mind refusing to close your eyses is no different than refusing to answer questions.

 

[CdwJava]

Technicaly passenger is still a free man and not being detain. I can any time open the door and walk away if i chose to

Who on Earth told you that?! No, you do not automatically have a right to just walk away.

The Supreme Court has held that in all traffic stops the driver and the passengers are seized and all persons in the car can therefore challenge the constitutionality of the stop. (Brendlin (2007) 551 U.S. 249.) The detention of the occupants "ordinarily continues, and remains reasonable, for the duration of the stop." (Johnson (2009) 129 S.Ct. 781, 783; see Hoyos (2007) 41 Cal.4th 872, 894.)​

The same rule applies to passengers: an officer may order passengers out of the car pending completion of a traffic stop. "[T]he same weighty interest in officer safety is present regardless of whether the occupant of the stopped car is a driver or passenger." "[D]anger to an officer from a traffic stop is likely to be greater when there are passengers in addition to the driver in the stopped car. While there is not the same basis for ordering the passengers out of the car as there is for ordering the driver out, the additional intrusion on the passenger is minimal." (Wilson (1997) 519 U.S. 408, 414-415; Saunders (2006) 38 Cal.4th 1129, 1134-1135; Hoyos (2007) 41 Cal.4th 872, 892; see also Ruvalcaba (9th Cir. 1995) 64 F.3d 1323, 1327.) Therefore, it is always reasonable to order passengers out for the sake of your safety in every traffic stop. (Lomax (2010) 49 Cal.4th 530, 564.)​

I will never let a passenger just walk away from my stop ... when you get jumped from behind by a passenger that circled the block, it sort of makes you a wee bit cautious in the future.

so i sit in the vehicle. Any reasonable person would do that.

I agree.

Now let's look it up, dry lips and talking fast is not a reasonable suspecious or cause to be lieve this guy might be under the influence of controlled substance. He needs more than that.

Not necessarily for a detention - which requires a mere detention. Both those CAN be symptoms of being under the influence, but by themselves they are weak. However, they can be sufficient for an officer to take a closer look.

So why did he ask me out in the first place and plus when i asked what are u conductiong is this a test or whatever he said investigation... wtf is an investigation now his is not explaining any prosedure to me.

Well, he does not have to tell you ... though it is typically advisable to do so, for a few reasons. If he did not tell you when you asked, then it could be that the officer is not all that well trained in drug and/or alcohol evaluations.

So the question is are you sure, he had reasonable suspecious or cause to believe i was under controlled substance? are you sure this arrest was legitimate? especially when i came out clean, his traning or assumtion was incorrect. See what i mean?

He has a right to be wrong. Unless you were arrested for being under the influence of a controlled substance or intoxicated in a public place, his evaluation is neither here nor there.

The issue here would seem to be whether or not he could arrest you for failing to comply with the FSTs by not closing your eyes. And on that I will agree with Tranquility that it would seem - on its face - to be insufficient probable cause to make an arrest for a process you are not lawfully required to cooperate with anyway.

If the police report articulates the arrest for not closing your eyes, I would think the DA would not even pursue this 148 case.

 

[grishid]

Nor cop seargent. Yes report states that. But my attorney says DA does not want to drop the charges im suprised too. But after here and there it will but I don't know why is it taking so much time.

 

[CdwJava]

Nor cop seargent. Yes report states that. But my attorney says DA does not want to drop the charges im suprised too. But after here and there it will but I don't know why is it taking so much time.

Have you been arraigned, yet? If not, the DA just might be waiting and hoping you will accept a deal.

If you have been arraigned, about all I can think is that the officer articulated some other actions on your part that can be argued as obstructing or delaying the officer. Maybe.

 

[grishid]

Yes Arraignment was already passed. It's been like about 6 months case is still going... DA filed it. I'm not taking any deals. I want dismissal or reject.

My lawyers is working on the Pitches Motion.

 

[grishid]

Also, when you mentioned about passenger being detained along with the driver. First, why is the passenger being detained under what circumstances? And if the passenger is being detained just for security reasons, why would the officer try to find some BS reason to start investigation for a possible of bs assumption that officer might have? And if the officer is detaining the passenger for reason, why is he ending up arresting the subject when the subject has not done anything at the point and the officer is safe. The officer at that time, conducted a pat search and it was clear that the subject was not in danger to him and could have him sit on the curb while the contact officer finishes his job. But since the officer is afraid of the passenger that you state in your posting for officer safety.. why would the officer then start to open up a different job and different investigation when the cover officer is still in process with the driver? if they afraid of their safety, the contact officer has to deal with the driver first and cover officer should watch for the passenger. That's how it should work it's common sense they should be trained for that. So in this case the cover officer is not watching out for the contact officer's back in case of driver my take out a gun and shoot... see what i mean? They were conducting poor "investigation" and their job duties.