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Author Topic: Violation of fourth amendmant right?  (Read 1014 times)

slacker

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Re: Violation of fourth amendmant right?
« Reply #10 on: December 14, 2006, 04:11:04 PM »
First, you refer to questioning the driver for drinking, and then note that the passenger passes the field sobriety tests. I'm going to assume that's a typo.

If the driver is detained, but no cause for arrest is established, it looks like it falls into the "Terry stop." The officer can detain the person if they have suspision of a crime, but can't keep them in detention for any longer than necessary (a fairly vague standard) without any further proof. Since the driver did not fail the sobriety tests and did not consent to the search, the officer didn't have probable cause to continue with the search.

Had the driver failed the sobriety test, the officer would have had probable cause and could have searched the passenger compartment over the objection of the driver and passenger.

law07

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Re: Violation of fourth amendmant right?
« Reply #11 on: December 14, 2006, 04:18:20 PM »
You're forgetting the automobile exception which allows police to search any part of the car and any containers within the car if there was probable cause to stop the vehicle in the first place.

jimmyjohn

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Re: Violation of fourth amendmant right?
« Reply #12 on: December 14, 2006, 04:26:08 PM »
You're forgetting the automobile exception which allows police to search any part of the car and any containers within the car if there was probable cause to stop the vehicle in the first place.

That's not really the automobile exception.  The automobile exception allows the police to search the car without a warrant if they have probable cause to believe that they will find evidence in the car, i.e. if they see someone putting a bag of weed in the car.  Pulling a car over on suspicion of drunk driving is not the same as having probable cause to believe that there is evidence in the car itself.

LostMyMonkeys

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Re: Violation of fourth amendmant right?
« Reply #13 on: December 14, 2006, 04:41:01 PM »
Why wouldn't the admission to drinking three beers constitute probable cause?

And reasonable suspiscion isn't as high of a bar as probable cause. You only need RS to search. Driver admitted to be drinking = RS to search the car.  Passengers objection is irrelvant.
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jimmyjohn

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Re: Violation of fourth amendmant right?
« Reply #14 on: December 14, 2006, 06:33:41 PM »
Why wouldn't the admission to drinking three beers constitute probable cause?

And reasonable suspiscion isn't as high of a bar as probable cause. You only need RS to search. Driver admitted to be drinking = RS to search the car.  Passengers objection is irrelvant.


That's just incorrect.  Have you actually taken criminal procedure?  Officers can justify the initial search/seizure based on reasonable suspicion.  They may not simply search anything they please on the basis of reasonable suspicion.  When an officer conducts a Terry stop, there are 2 choices.  Either their investigation leads to a formulation of probable cause (and then they can search), or their investigation does not lead to a formulation of probable cause and then they must either 1. ask for consent to search or 2. let the person go. 

Where in this hypothetical is it suggested that the officers had probable cause to search the car?  I don't think they did because clearly their initial tests show that the driver was not intoxicated (4 tests are enough right?). Reasonable suspicion has never been used as a justification to allow officers a blanket authority to search whatever they want.  It is used a means for a brief detainment and frisk in order to allow investigation into a possible crime.  That is why the initial stop of the car in this hypo is ok.  However, once the investigation does not lead to any more evidence they have to either ask for consent or let the driver go.  They can't pull the car over and then continue to search if they don't learn anything else to arouse their suspicions.

Lenny

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Re: Violation of fourth amendmant right?
« Reply #15 on: December 14, 2006, 07:23:11 PM »
The above posters are right re: reasonable suspicion.  I don't think reasonable suspicion is the right thing to be talking about here.  Moreover, I would add that reasonable suspicion / Terry stops are supposed to only be to ensure the safety of the officers - i.e. to search for weapons if the cops have a reasonable suspicion that the subject might be armed, in an attempt to elevate it up to probable cause. 

I think the best way to approach this problem is chronologically.  I am assuming the police had probable cause to stop the car in the first place.  So, assuming that, when the officer approached and the driver admitted that he had had 3 beers, the officer at that point had probable cause to suspect DUI / drinking and driving.  Thus, under the automobile exception, he could have searched the car without consent right then, before doing the field sobriety test, based on the probable cause derived from the driver's admission.  But, after doing the 3 tests, the probable cause clearly dissipated, though it may very well be that there was still enough probable cause to do the search anyway, still based upon the driver's admission.

At least that's the way I would answer it.

LostMyMonkeys

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Re: Violation of fourth amendmant right?
« Reply #16 on: December 14, 2006, 09:01:30 PM »
The way I read it (as it is typed) the tests were done on the passenger. Why, I don't know, but his failure to, well, fail, is irrelevent to the initial scope of the stop..ie the DRIVER and the driver's admission of drinking beer. TO me, searching the car for something related to that is well within the scope. Plus it was the passenger who protested the search, not the driver and I say again, Passanger here is irrelevant...

And ya'll are probably right about RS vs PC to search, but within the scope of the initial stop is still ok... at least from what I could tell after having just written a 30 page brief on the issue.
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jimmyjohn

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Re: Violation of fourth amendmant right?
« Reply #17 on: December 14, 2006, 09:06:39 PM »
Ahh, just now saw that myself.  What the hell, that's what not reading closely will get you.  That certainly does change the entire issue.  That has to be a typo because if not this is a quite convoluted hypothetical.  The passenger probably doesn't even have standing to complain about any search of the car whether illegal or not. 



The driver admits that he had 3 beers. The officers then give him 4 field sobriety tests, and the passenger passes them all.

???

LostMyMonkeys

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Re: Violation of fourth amendmant right?
« Reply #18 on: December 14, 2006, 09:16:03 PM »
Ahh, just now saw that myself.  What the hell, that's what not reading closely will get you.  That certainly does change the entire issue.  That has to be a typo because if not this is a quite convoluted hypothetical.  The passenger probably doesn't even have standing to complain about any search of the car whether illegal or not. 



The driver admits that he had 3 beers. The officers then give him 4 field sobriety tests, and the passenger passes them all.

???

Yeah.. my thoughts exactly...where is the error? Should the tests have been done on the driver? or Both? But why on earth would an officer do FST's on a passanger? In my 8 year law enforcement carrer (pre law school) we only did FSTs on a passenger a handful of times and that was only to determine if we had a sober driver to take the car or else we would have to tow it...

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jgsmith

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Re: Violation of fourth amendmant right?
« Reply #19 on: December 14, 2006, 10:38:07 PM »
It was a typo. My fault. The DRIVER admitted to having three beers. The officer then gave the DRIVER 4 field sobriety tests, and he passed them all. The officers then searched the vehicle without consent and at the objection of the DRIVER.

Sorry that I mistyped, and thanks to everyone who has responded, it is nice to get other perspectives on an issue.