Random question regarding search and seizure laws

[Datman07]

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

Just recently saw on tv where a guy was pulled over by police, but also had his car searched because he had a High Times magazine in the passenger seat. I am wondering if that is REALLY legitimate grounds for a search? And also if they claim to have smelled something that could possibly be something illegal, does that fall into the same category? What happens if you deny the officer access to a search? How easy is it to obtain a warrant?

I'm not in trouble or anything like that, but have always wondered and thought I could get a definitive answer....

 

[FlyingRon]

The smell of drugs in most cases justifies the ARREST. At the time of arrest a cursory search can be done to verify the contents of the car. Beyond that requires a warrant (usually no big issue as the car is already impounded).

A copy of High Times would not be justification for anything.
Of course the cops can always ASK to search the car and if you consent, it matters not why they asked.

 

[Datman07]

So it seems like, from what you are saying, if they requested to do a search A(given there is no obvious evidence) and I said no, they have to walk away? Or can they obtain an instant warrant?

 

[FlyingRon]

So it seems like, from what you are saying, if they requested to do a search A(given there is no obvious evidence) and I said no, they have to walk away? Or can they obtain an instant warrant?

If they have no probable cause to arrest you or some reasonable suspicion that a crime is committed and you would dispose of the evidence, sure. Of course they might detain you long enough to actually get a warrant issued.

 

[Datman07]

The smell of drugs in most cases justifies the ARREST. At the time of arrest a cursory search can be done to verify the contents of the car.

Almost seems unfair that they can do all of that from a "smell" as there could be many factors contributing to the "smell", and that's if there even is a "smell".

 

[dave33]

So it seems like, from what you are saying, if they requested to do a search A(given there is no obvious evidence) and I said no, they have to walk away? Or can they obtain an instant warrant?

It is unlikely the police will walk away. It is very easy for them to legitimize a search. Basically, if they want to search than a search will be conducted. If evidence is found than that will be used for the probable cause to conduct said search. An example would be if they found marijuana than they could easily and believably say they smelled the substance giving them legal reason for the search. When nothing is found than you each go on your merry way. You may be bitter but that's the reality.

 

[CdwJava]

Just recently saw on tv where a guy was pulled over by police, but also had his car searched because he had a High Times magazine in the passenger seat. I am wondering if that is REALLY legitimate grounds for a search?

Keep in mind that TV does not typically show all the details of stops. There is a lot of editing to turn a 30 minute contact into a 5 minute vignette.

And, no, by itself a High Times magazine should NOT be grounds for a search.

And also if they claim to have smelled something that could possibly be something illegal, does that fall into the same category? What happens if you deny the officer access to a search? How easy is it to obtain a warrant?

The odor of marijuana will generally be sufficient to justify a search, yes. If you refuse, you can go to jail for obstruction or whatever state law might indicate for such an act. It is doubtful they will get a warrant because one is generally not required to search a vehicle on a traffic stop provided there is probable cause to conduct the search.

Marijuana has a very distinctive odor to it and most of us who do not use it can smell it quite easily. It also has a way of clinging to clothing, car interiors, and permeating whatever vehicle or residence it might be in.

 

[tranquility]

Since the automobile exception allows a search of an auto with only probable cause, it makes little sense for the police to get a warrant--which has the same requirement. (Unless they really, really, think there is something there and they want to be sure to get it in.)

 

[Dillon]

Since the automobile exception allows a search of an auto with only probable cause, it makes little sense for the police to get a warrant--which has the same requirement. (Unless they really, really, think there is something there and they want to be sure to get it in.)

the automobile exception is now obsolete as Carroll v. U.S. could be overturned if anyone wants to bring the issue up on appeal.

Officer, I'm going to need you to get a warrant faxed to your printer, after you fax your supporting affidavit to the judge per the 4th amendment.


The right of the people to be secure in their persons, houses, papers, and (personal) 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.


it would be unreasonable in 2011, for an Officer not to get a warrant and not follow the supreme law of the land, don't you think ?


have a nice day - Dillon, Sui Juris

 

[CdwJava]

the automobile exception is now obsolete as Carroll v. U.S. could be overturned if anyone wants to bring the issue up on appeal.

Not true. The matter has been reaffirmed numerous times in many states as well as the USSC. The most recent case law on the issue in CA appears to be from 2005 and for the USSC from 1999 ... long after Carroll in 1925.

Try this one: Dyson (1999) 527 U.S. 465, 466

Officer, I'm going to need you to get a warrant faxed to your printer, after you fax your supporting affidavit to the judge per the 4th amendment.

Wow ... your local cops have printers and fax machines in their patrol cars?!

it would be unreasonable in 2011, for an Officer not to get a warrant and not follow the supreme law of the land, don't you think ?

The USSC interprets that grand document, and there exists exceptions for exigencies. A vehicle on a detention generally qualifies as en exigency so long as probable cause exists to believe evidence of a crime exists. In other words, if the officer has sufficient probable cause to obtain a warrant, then he or she has the ability to conduct a search.

 

[Dillon]

Not true. The matter has been reaffirmed numerous times in many states as well as the USSC. The most recent case law on the issue in CA appears to be from 2005 and for the USSC from 1999 ... long after Carroll in 1925.

Try this one: Dyson (1999) 527 U.S. 465, 466

The USSC interprets that grand document, and there exists exceptions for exigencies. A vehicle on a detention generally qualifies as en exigency so long as probable cause exists to believe evidence of a crime exists. In other words, if the officer has sufficient probable cause to obtain a warrant, then he or she has the ability to conduct a search.

The reason for the exigencies no long exist, as faxes/emails/cell calls from a Judge to an Officer is reasonable at this time. In order to prevail in court, one must argue the reason for the warrantless search or seizure is obsolete now, as a faxed/emailed/phone warrant from a judge is reasonalble and protests the officer from lawsuits. (let the judges do their job)

with all due respect to the Police, they are not lawyers or usually are not sui juris and dont understand legal terms or the common law.

Probably Caused What Damages and to Who ? Are Officers making legal determinations on probable cause supported by Oath or affirmation from injured/damaged people? Are they practicing law w/o a license?

 

[CdwJava]

The reason for the exigencies no long exist, as faxes/emails/cell call from a Judge to an Officer is reasonable at this time. In order to prevail in court, one must argue the reason for the warrantless search or seizure is obsolete now, as a faxed/emailed/phone warrant from a judge is reasonalble and protests the officer from lawsuits. (let the judges do their job)

I assume you have some controlling case law you can cite that will support this outrageous contention?

As a note, the overwhelming majority of police cars lack fax machines, printers, and even computers capable of sending or receiving email. Similarly, we do not have enough judges on payroll in major jurisdictions to contact for each and every vehicle search that might be conducted based upon probable cause.

The current state of the law DOES allow for exigencies and, I suspect, shall continue to do so for many generations to come.

Probably Caused What Damages and to Who ? Are Officers making legal determinations on probable cause? Are they practicing law w/o a license?

Read up on probable cause. The articulation of probable cause does NOT require an attorney.

 

[Dillon]

I assume you have some controlling case law you can cite that will support this outrageous contention?

As a note, the overwhelming majority of police cars lack fax machines, printers, and even computers capable of sending or receiving email. Similarly, we do not have enough judges on payroll in major jurisdictions to contact for each and every vehicle search that might be conducted based upon probable cause. The current state of the law DOES allow for exigencies and, I suspect, shall continue to do so for many generations to come.


Read up on probable cause. The articulation of probable cause does NOT require an attorney.

No case law, nobody has tried to argue for the reason its obsolete, yet. maybe you will be the first to raise the issue.

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No, i say Reasonable contention.

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How about a phone or radio? got no answer for that one?

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No judges, not my problem. just double the amounts to be payed for traffic citations.

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probable cause, supported by oath or affirmation by injured/damaged people (dont forget that part).
also is the probable cause civil or criminal?


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just like the horse and buggy, obsolete and replaced by newer technology.

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dillon, sui juris.

 

[Proserpina]

No, i say Reasonable contention.

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How about a phone or radio? got no answer for that one?

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No judges, not my problem. just double the amounts to be payed for traffic citations.

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probable cause, supported by oath or affirmation by injured/damaged people (dont forget that part).

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just like the horse and buggy, obsolete and replaced by newer technology.

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God Bless,


dillon, sui juris.

Dillon.

Put. The. Bong. Down.

Seriously.

@CDW - bless your heart for your continued patience.

 

[Dillon]

Read up on probable cause. The articulation of probable cause does NOT require an attorney.

Probable cause is a level of reasonable belief, based on facts that can be articulated, that is required to sue a person in civil court or to arrest and prosecute a person in criminal court. Before a person can be sued or arrested and prosecuted, the civil plaintiff or police and prosecutor must possess enough facts that would lead a reasonable person to believe that the claim or charge is true.

if no ones legal rights were violated and they suffer no damage or injury, there is no factual reason to believe (no probable cause to believe) a crime has been commited.

Conclusions of law are not FACTS before the Court, Go Figure.


dillon, sui juris