Legal Question: 4th Amendment

[Metasomatized Ijolite]

OK, here's the situation. The cops are called to a traffic accident. Upon arriving at the scene, they notice a strong odor of marijuana coming from a house. They inspect the house from the outside while on the owner's property and notice a back door is open. They proceed to enter and find the motherload of pot. They then proceed to search the rest of the residence. No warrant has been obtained at this point.

The police chief claims that because the back door was open, the police had the right to enter under "special circumstances to secure the residence and inspect for violence".

I've never heard of any special circumstance allowing officers to enter a home "to secure it" because a door was open. You don't forfeit your 4th amendment rights by leaving your door open. Is the search legal? I say it's not. There was no consent from the resident, there were no exigent circumstances (nobody was even home), there was no warrant, and the police were not in "hot pursuit" of a suspect. Those are the only exceptions allowing a warrantless entry by the cops that I can find. Any lawyers on here that know otherwise?

 

[Humble Pride]

Yes, I've studied Criminal Law (at the Academy), and if the door is open and they feel "anyone/anything" is in danger, - they can enter - NO warrant needed.

Just like if a cop walks by a house and hears a verbal dispute, and thinks someone is in danger - no warrant needed.

HOWEVER - items found inside while checking out one of these entries IS subject to scrutiny


Nice of you to stop by and tell us your story.........next time - shut the fukin door!

 

[chris302001]

lol @ all the pot heads who are self proclaimed legal experts. Seriously, I love you guys.....olololol.

 

[flex229]

not sure, but it sounds like the evidence (pot) will be suppressed.

 

[Humble Pride]

lol @ all the pot heads who are self proclaimed legal experts. Seriously, I love you guys.....olololol.

I don't smoke weed (ever)

 

[Metasomatized Ijolite]

Yes, I've studied Criminal Law (at the Academy), and if the door is open and they feel "anyone/anything" is in danger, - they can enter - NO warrant needed.

Just like if a cop walks by a house and hears a verbal dispute, and thinks someone is in danger - no warrant needed.

HOWEVER - items found inside while checking out one of these entries IS subject to scrutiny


Nice of you to stop by and tell us your story.........next time - shut the fukin door!

First off, cops cannot enter because they believe ANYTHING is in danger. It must be a person. Second, where was anyone in danger in my scenario? Nobody was home. It was just a house full of plants. How does that create exigent circumstances? Nice of you to stop by and tell us just how pathetic your police academy training is. Next time the cops should wait 30 minutes for the search warrant.

This story has no relation to me at all. They found more pot than Cheech and Chong could smoke in their entire lifetimes. The cops filled up a 4 meter U-Haul with the stuff.

 

[Humble Pride]

First off, cops cannot enter because they believe ANYTHING is in danger. It must be a person. Second, where was anyone in danger in my scenario? Nobody was home. It was just a house full of plants. How does that create exigent circumstances? Nice of you to stop by and tell us just how pathetic your police academy training is. Next time the cops should wait 30 minutes for the search warrant.

This story has no relation to me at all. They found more pot than Cheech and Chong could smoke in their entire lifetimes. The cops filled up a 4 meter U-Haul with the stuff.

Your insults are pathetic...

Glad the cops found what they "smelled" from the street - at least someone is doing thier job

Also - ask around - thier seizure/entrance WAS legal - no need for the Warrant.

Smoke on Cheech..........

 

[Metasomatized Ijolite]

Your insults are pathetic...

Glad the cops found what they "smelled" from the street - at least someone is doing thier job

Also - ask around - thier seizure/entrance WAS legal - no need for the Warrant.

Smoke on Cheech..........

It wasn't my shit. If I was related to it I sure as hell wouldn't be typing about it on a chat board. I'm actually pissed because the suspect has a violent past and our redneck hillbilly cops failed to properly bust him. Now he walks and will likely kill someone.

And I have a feeling that a bad lawyer could get this case tossed out of court. A good lawyer could not only get the case tossed out, but could turn around and sue the officers for a civil rights violation.

 

[Humble Pride]

It wasn't my shit. If I was related to it I sure as hell wouldn't be typing about it on a chat board. I'm actually pissed because the suspect has a violent past and our redneck hillbilly cops failed to properly bust him. Now he walks and will likely kill someone.

And I have a feeling that a bad lawyer could get this case tossed out of court. A good lawyer could not only get the case tossed out, but could turn around and sue the officers for a civil rights violation.

Highly unlikely, but you should've stated that in the original message, and it might have been met with more reception.

Also - this is a VERY slow time of the day/night here - so I will try and bump the thread for you in the morning for more answers.

Good luck

 

[Metasomatized Ijolite]

deleted

 

[chris302001]

I don't smoke weed (ever)

I wasnt talkin about u bro, you beat me to reply

 

[chris302001]

deleted

Goddamnit every time i wanna give red k, I dont have any k power!

 

[Humble Pride]

Goddamnit every time i wanna give red k, I dont have any k power!

what'd he say???? lol

 

[Metasomatized Ijolite]

what'd he say???? lol

Honestly, I don't remember but it wasn't anything Red K worthy. I deleted it after you toned down. For the record, my neighborhood has turned into a cesspool of drugs and the violent crime that goes with it. I don't care if other people want to smoke dope but when they start shooting people, that bothers me. There have been 4 shootings on my block in the past 3 months with three of the victims dead. A lot of us citizens are getting really upset because this area was considered a great neighborhood 10 years ago. There's a lot of us angry at the police, mayor, city council, etc. for not taking care of us. I'm glad that I rent. Property values are decreasing.

 

[Stefka]

OK, here's the situation. The cops are called to a traffic accident. Upon arriving at the scene, they notice a strong odor of marijuana coming from a house. They inspect the house from the outside while on the owner's property and notice a back door is open. They proceed to enter and find the motherload of pot. They then proceed to search the rest of the residence. No warrant has been obtained at this point.

The police chief claims that because the back door was open, the police had the right to enter under "special circumstances to secure the residence and inspect for violence".

I've never heard of any special circumstance allowing officers to enter a home "to secure it" because a door was open. You don't forfeit your 4th amendment rights by leaving your door open. Is the search legal? I say it's not. There was no consent from the resident, there were no exigent circumstances (nobody was even home), there was no warrant, and the police were not in "hot pursuit" of a suspect. Those are the only exceptions allowing a warrantless entry by the cops that I can find. Any lawyers on here that know otherwise?

The cops are talking about the emergency aid exception to the warrant requirement. In 4th Amendment cases, houses are the most protected spaces of all. (Scalia goes ape shit over houses). So the cops would have to make a strong showing that they saw indications that they needed to render emergency assistance to an injured occupant or to protect an occupant from imminent injury. Unless there was a blood trail from the car accident to the open door, I don't really see how just an open door could be enough. The example they use in my case book is two cops walking by a house and looking through the window and seeing a kid being attacked with a knife.

One or more cops should have stood around and secured the property while another one went and got a warrant. The strong smell of marijuana and blah blah and whatever blah blah based on their years of experience as police officers gave them probable cause to believe that there was contraband in the building.

I'm pretty sure that the pot will be suppressed. I doubt the owners will win a 1983 claim though.

 

[Razorguns]

If the door is OPEN, they have a requirement to go in and check what's going on. You want a head story on tomorrow's paper abouta family that was gunned down, cops walked by an open door, and no one checked it out?

Did they use that law for that purpose or to look up the marijuana? Well duh. But they're well within their rights.

And next time, put down the bong and start drinking tea and hot chocolate to relax yourself. They're legal.

r

 

[seagrave]

Stefka is right. The highest expectation of privacy is in the home. They could look in the house through a window to help develop PC for a warrant, but not walk in through an unlocked door. At best they could gave possibly and that is possibly gone in to secure the house for the safety of the officers and to prevent the destruction of the contraband while obtaining a warrant. Of course that assumes that they already had enough to get a warrant.

Razor's argument if the door is open they have a requirement to go inside would have to apply to every home in every neighborhood any time you open the door.

 

[Metasomatized Ijolite]

If the door is OPEN, they have a requirement to go in and check what's going on. You want a head story on tomorrow's paper abouta family that was gunned down, cops walked by an open door, and no one checked it out?

Did they use that law for that purpose or to look up the marijuana? Well duh. But they're well within their rights.

And next time, put down the bong and start drinking tea and hot chocolate to relax yourself. They're legal.

r

Yeah, I think I remember reading something about that case law.

 

[Razorguns]

Razor's argument if the door is open they have a requirement to go inside would have to apply to every home in every neighborhood any time you open the door.

That is true.

The law is 'If there is suspicion of foul play or a criminal act in progress they have the right to enter any premises' (loosely translated from its legalese).

That law's been challenged a zillion times, trust me - you ain't gonna be the one hero who can challenge it to the supreme court

It's a good law. If I'm at work, and my door's wide open - check that shit out and close it before some gangbanger shits get some ideas.

r

 

[chris302001]

what'd he say???? lol

lol I dont know, i didnt get to read it either.....I just wanted to red him.

 

[Stefka]

If the door is OPEN, they have a requirement to go in and check what's going on. You want a head story on tomorrow's paper abouta family that was gunned down, cops walked by an open door, and no one checked it out?

Did they use that law for that purpose or to look up the marijuana? Well duh. But they're well within their rights.

And next time, put down the bong and start drinking tea and hot chocolate to relax yourself. They're legal.

r

You're getting things confused. The door being open doesn't make a difference, unless the officers see dead bodies or someone dying or being attacked through that opened door.

The "legalese" is important in law. The police need more than a "suspicion" that an individual is in need of emergency aid. They need more than a "hunch" to get beyond the warrant requirement of the 4th Amendment. If they hear gunshots or screams, or see someone hurt or being attacked they can go in pursuant to the emergency aid exception. Otherwise, they need to get a warrant. The police were not "well within their rights" in this situation.

 

[Stefka]

That is true.

The law is 'If there is suspicion of foul play or a criminal act in progress they have the right to enter any premises' (loosely translated from its legalese).

That law's been challenged a zillion times, trust me - you ain't gonna be the one hero who can challenge it to the supreme court

It's a good law. If I'm at work, and my door's wide open - check that shit out and close it before some gangbanger shits get some ideas.

r

It has already been to the Supreme Court - and their decision was contrary to your statement of the law.

Work has a lesser expectation of privacy than the home (but still a relatively high expectation of privacy). Whether the police can walk into your office through an open door depends on several different factors. It depends on how the police got into the building in the first place and whether people other than your coworkers are going in and out of your office regularly. If police are in the office building for legitimate purposes and they look through your open office door and see a pot plant, that falls within the plain view doctrine. But if your door is open (and they don't have a warrant) they cant go in and start looking around under your desk.

 

[Razorguns]

You're getting things confused. The door being open doesn't make a difference, unless the officers see dead bodies or someone dying or being attacked through that opened door.

The "legalese" is important in law. The police need more than a "suspicion" that an individual is in need of emergency aid. They need more than a "hunch" to get beyond the warrant requirement of the 4th Amendment. If they hear gunshots or screams, or see someone hurt or being attacked they can go in pursuant to the emergency aid exception. Otherwise, they need to get a warrant. The police were not "well within their rights" in this situation.

lol. Pick up the phone and call your local PD. Ask if they need a warrant if they see an open door on a house and need to investigate. You can get your answer in 15 seconds.

r

 

[Stefka]

lol. Pick up the phone and call your local PD. Ask if they need a warrant if they see an open door on a house and need to investigate. You can get your answer in 15 seconds.

r

See, this is where you are getting confused. Why do they NEED to investigate? If they heard gunshots and screaming that falls under the emergency aid exception. Then the door doesn't even need to be open, they can break in to render emergency assistance. If they just see an open door, that doesn't create any sort of immediate "need" to investigate.

Open doors are not a magic bullet. Even if a police officer has a warrant to search a house he can't just walk in if the door is open. He has to knock and announce absent exigent circumstances.

Obviously you're not tuned into the nuances of the law surrounding the 4th amendment. Neither are a lot of police officers, which is why defense attorneys love motions to suppress.

 

[Cutiebaby]

Yes the cops can go into the home due to the door being opened. If they feel as though there is a situation such as robbery or an emergency situation taking place in that home they most certainly can go into the home. As for search and seizure, they do not need a warrant for that either. Surely a judge will question why they did not approach this situation differently, however I doubt that the case will get dropped!
They went in under acceptance of the exclusionary rule of Emergency searches and they seized the pot due to plain view doctrine.
-Meaning they went into the home without a warrant because they thought there may have been an emergency situation. Then they seized the pot without a warrant due to not only the smell of it but also the plain view of it being in the home.

 

[gjohnson5]

You're getting things confused. The door being open doesn't make a difference, unless the officers see dead bodies or someone dying or being attacked through that opened door.

The "legalese" is important in law. The police need more than a "suspicion" that an individual is in need of emergency aid. They need more than a "hunch" to get beyond the warrant requirement of the 4th Amendment. If they hear gunshots or screams, or see someone hurt or being attacked they can go in pursuant to the emergency aid exception. Otherwise, they need to get a warrant. The police were not "well within their rights" in this situation.

I think that line of sight is also an exception to a warrant situation. If they see a contraband due to the door being open then I do believe they can legally walk in. This will be your problem is that they will say they saw the pot due to the door being open

 

[Metasomatized Ijolite]

Yes the cops can go into the home due to the door being opened. If they feel as though there is a situation such as robbery or an emergency situation taking place in that home they most certainly can go into the home. As for search and seizure, they do not need a warrant for that either. Surely a judge will question why they did not approach this situation differently, however I doubt that the case will get dropped!
They went in under acceptance of the exclusionary rule of Emergency searches and they seized the pot due to plain view doctrine.
-Meaning they went into the home without a warrant because they thought there may have been an emergency situation. Then they seized the pot without a warrant due to not only the smell of it but also the plain view of it being in the home.

You are wrong because there were no signs of an emergency in progress. Had they spotted someone being stabbed through a window, they can smash the door down and do what needs to be done. However there was no emergency happening in this case. The officers had plenty of time to secure a warrant before entry. That's one of the keys to this situation. The evidence wasn't going anywhere, there was no emergency, and they could have had a warrant in less than an hour. It was piss poor police work and now this violent thug is going to walk.

Personally, I'm for legalization of pot. If you could go to a tobacco store and buy it, the stuff would be so cheap it would eliminate thugs with guns from selling it.

 

[Cutiebaby]

I think that line of sight is also an exception to a warrant situation. If they see a contraband due to the door being open then I do believe they can legally walk in. This will be your problem is that they will say they saw the pot due to the door being open

exactly...The plain view..

Now isn't there an acceptance to not getting a warrant (other than the plain view) that allows them to go in because they smell the pot. That they had intentions on getting a warrant yet felt it necessary to go in ahead of time?? Is it something like the good faith?

I am not positive but I think that there is something else out there that will allow them to be able to do this other than the "emergency" scenario.

 

[1500]

The cops have PC to enter the residence and secure it. Peform a protective sweep of the residence and lock it down. They can articulate that they know that guns and other weapons of violence are the tools of the trade for drug dealers and users. They performed a protective sweep to ensure that none of the drug manufacturers were hiding and lying in wait in an attempt to harm them and then secured the residence. Everything in plain view is fair game. If they searched anywhere other than places where people could hide then that evidence would be suppressed without a warrant.

If they entered based on what i stated above and articulated it that way. they will be fine. Once the residence is deemed safe and secure, then they must secure a search warrant to further search the house. Everything in plain view is just PC for them when to go apply for the warrant.

 

[Stefka]

exactly...The plain view..

Now isn't there an acceptance to not getting a warrant (other than the plain view) that allows them to go in because they smell the pot. That they had intentions on getting a warrant yet felt it necessary to go in ahead of time?? Is it something like the good faith?

I am not positive but I think that there is something else out there that will allow them to be able to do this other than the "emergency" scenario.

That isnt the plain view doctrine. The plain view doctrine is when the police are legally in the house (ie. they already have a warrant) and they see contraband. And the plain view doctrine is limited. For example, if the police are in a house to execute an arrest warrant, and they see what looks like super nice (probably stolen) flat screen TVs, they can't go over and turn them around to get their serial numbers. The numbers are not in plain view. Even if the TVs looked suspicious they couldn't go check them out. They'd need to get another warrant.

There is no I see bad shit in the house exception to the warrant requirement without exigent circumstances. Exigent circumstances are circumstances in which getting a warrant would put the officers in danger or would risk the destruction of evidence. If you've got two cops guarding the house while the other goes to get a warrant, there isnt much of a chance of 700 pot plants just vanishing.

 

[gjohnson5]

That isnt the plain view doctrine. The plain view doctrine is when the police are legally in the house (ie. they already have a warrant) and they see contraband. And the plain view doctrine is limited. For example, if the police are in a house to execute an arrest warrant, and they see what looks like super nice (probably stolen) flat screen TVs, they can't go over and turn them around to get their serial numbers. The numbers are not in plain view. Even if the TVs looked suspicious they couldn't go check them out. They'd need to get another warrant.

There is no I see bad shit in the house exception to the warrant requirement without exigent circumstances. Exigent circumstances are circumstances in which getting a warrant would put the officers in danger or would risk the destruction of evidence. If you've got two cops guarding the house while the other goes to get a warrant, there isnt much of a chance of 700 pot plants just vanishing.

AAh , so if they see contraband in plain view , then they can phone in a warrant....
But I bet they never do that
US Constitution Annotated - Plain View

294 Steele v. United States, 267 U.S. 498 (1925) (officers observed contraband in view through open doorway; had probable cause to procure warrant). Cf. Taylor v. United States, 286 U.S. 1 (1932) (officers observed contraband in plain view in garage, warrantless entry to seize was unconstitutional).

 

[Cutiebaby]

That isnt the plain view doctrine. The plain view doctrine is when the police are legally in the house (ie. they already have a warrant) and they see contraband. And the plain view doctrine is limited. For example, if the police are in a house to execute an arrest warrant, and they see what looks like super nice (probably stolen) flat screen TVs, they can't go over and turn them around to get their serial numbers. The numbers are not in plain view. Even if the TVs looked suspicious they couldn't go check them out. They'd need to get another warrant.

There is no I see bad shit in the house exception to the warrant requirement without exigent circumstances. Exigent circumstances are circumstances in which getting a warrant would put the officers in danger or would risk the destruction of evidence. If you've got two cops guarding the house while the other goes to get a warrant, there isnt much of a chance of 700 pot plants just vanishing.

I thought plain view was in Plain view. For instance a cop pulls me over on a minor traffic violation then sees a bowl (weed smokers pipe) on my dash, then they have the plain view which allows them to warrantless search my car and seize what ever other drugs and paraphernalia that I have. Then I then become charged with possession etc and they have no warrant with a search and seizure.
Guess I am mistaken..Good thing that was only my first class and I am still new at this, right. LOL Would suck if I walked away with a degree being this clueless.

 

[1500]

I thought plain view was in Plain view. For instance a cop pulls me over on a minor traffic violation then sees a bowl (weed smokers pipe) on my dash, then they have the plain view which allows them to warrantless search my car and seize what ever other drugs and paraphernalia that I have. Then I then become charged with possession etc and they have no warrant with a search and seizure.
Guess I am mistaken..Good thing that was only my first class and I am still new at this, right. LOL Would suck if I walked away with a degree being this clueless.

You are correct. if an officer sees your bowl in plain view he can then search the entire vehicle, including the trunk to attempt to locate any other contraband. Depending on the state, no warrant is needed for a vehicle due to the vehicle exception rule.

 

[Cutiebaby]

You are correct. if an officer sees your bowl in plain view he can then search the entire vehicle, including the trunk to attempt to locate any other contraband. Depending on the state, no warrant is needed for a vehicle due to the vehicle exception rule.

I know in the state of Massachusetts they don't need a warrant to search a car. When we got ours towed for DWI the next day I picked it up out of impound and they rummaged through everything

However, isn't it the same for a home as well? Say the cop comes here to ask a question or was called here for something. He sees a bud sitting on my desk can he then search my house warrantless based on the fact that the drugs were in plain view?

 

[1500]

I know in the state of Massachusetts they don't need a warrant to search a car. When we got ours towed for DWI the next day I picked it up out of impound and they rummaged through everything

However, isn't it the same for a home as well? Say the cop comes here to ask a question or was called here for something. He sees a bud sitting on my desk can he then search my house warrantless based on the fact that the drugs were in plain view?

yes you are on teh right track. If we are talking about a small amount of narcotics that could be destroyed because the officer has to secure a search warrant makes the situation exigent. The officer may enter the residence, detain you, perform a protective sweep of the entire residence to ensure no one else is inside for their safety.

Now, they may seize anything that they viewed in plain view while performing the sweep of the residence. They may not search anywhere other than where someone may be hiding. To increase the scope of the search, ie, cabinets, under couches, etc. they must have a search warrant or your consent to do so.

They will use everything that they seized in plain view as PC to secure the warrant.

 

[Stefka]

The cops have PC to enter the residence and secure it. Peform a protective sweep of the residence and lock it down. They can articulate that they know that guns and other weapons of violence are the tools of the trade for drug dealers and users. They performed a protective sweep to ensure that none of the drug manufacturers were hiding and lying in wait in an attempt to harm them and then secured the residence. Everything in plain view is fair game. If they searched anywhere other than places where people could hide then that evidence would be suppressed without a warrant.

If they entered based on what i stated above and articulated it that way. they will be fine. Once the residence is deemed safe and secure, then they must secure a search warrant to further search the house. Everything in plain view is just PC for them when to go apply for the warrant.

Protective sweeps are only acceptable if they are already in the building for legitimate purposes. They did not enter the building pursuant to a warrant or an exception to the warrant requirement.

 

[Stefka]

I know in the state of Massachusetts they don't need a warrant to search a car. When we got ours towed for DWI the next day I picked it up out of impound and they rummaged through everything

However, isn't it the same for a home as well? Say the cop comes here to ask a question or was called here for something. He sees a bud sitting on my desk can he then search my house warrantless based on the fact that the drugs were in plain view?

There is an automobile exception to the warrant requirement. Cars are considered to have a lesser expectation of privacy because they are subject to state regulations and they are easy to see into. There is a much greater expectation of privacy in a home. Police never need a warrant to search a car if they have probable cause to believe that there is evidence of a crime or contraband in the car.

 

[Stefka]

Y'all are luck I'm not grading these responses.

 

[Stefka]

yes you are on teh right track. If we are talking about a small amount of narcotics that could be destroyed because the officer has to secure a search warrant makes the situation exigent. The officer may enter the residence, detain you, perform a protective sweep of the entire residence to ensure no one else is inside for their safety.

Now, they may seize anything that they viewed in plain view while performing the sweep of the residence. They may not search anywhere other than where someone may be hiding. To increase the scope of the search, ie, cabinets, under couches, etc. they must have a search warrant or your consent to do so.

They will use everything that they seized in plain view as PC to secure the warrant.

That is right. But in the hypo, the officer was in her house for legitimate purposes. She gave him consent to enter. In the pot plant situation, they did not enter the building pursuant to a warrant or an exception to the warrant requirement.

 

[1500]

There is an automobile exception to the warrant requirement. Cars are considered to have a lesser expectation of privacy because they are subject to state regulations and they are easy to see into. There is a much greater expectation of privacy in a home. Police never need a warrant to search a car if they have probable cause to believe that there is evidence of a crime or contraband in the car.

The vehicle exception rule only applies to vehilces parked on the street, parking lot, public place, etc. It doesnt apply to vehilces parked at residences, private driveays, etc. A warrant is needed to search a vehcile in these circumstances. Police cant come onto the curtliage of someones property ie(domestic call), look inside a vehicle, see marijuana and then search it based on the vehilce exception rule. A warrant must be issued to search that vehicle. Courts have ruled that the exception rule does not apply in these situations. It can get very confusing. But you are obviously well informed,. For most Simply stated, dont commit crimes and you'll be just fine.

 

[1500]

That is right. But in the hypo, the officer was in her house for legitimate purposes. She gave him consent to enter. In the pot plant situation, they did not enter the building pursuant to a warrant or an exception to the warrant requirement.

Correct, I didnt read the first dude's entire situation, that is my fault But as you know, if the cop just saw lets say a pipe through the crack in the door in Angel's hypothetical situation. With or without consent, from whomever answered the door, he can boot the door and enter based on the fact that narcotics/paraphernalia could be easily destroyed. So many situations, so many different rulings, so little time

 

[Stefka]

The vehicle exception rule only applies to vehilces parked on the street, parking lot, public place, etc. It doesnt apply to vehilces parked at residences, private driveays, etc. A warrant is needed to search a vehcile in these circumstances. Police cant come onto the curtliage of someones property ie(domestic call), look inside a vehicle, see marijuana and then search it based on the vehilce exception rule. A warrant must be issued to search that vehicle. Courts have ruled that the exception rule does not apply in these situations. It can get very confusing. But you are obviously well informed,. For most Simply stated, dont commit crimes and you'll be just fine.

In her hypo she was "pulled over," so the automobile exception applies.

 

[1500]

In her hypo she was "pulled over," so the automobile exception applies.

I know, i know, i was just giving other examples to members who may think that their vehicle is at the mercy of the cops no matter where it is.

 

[Stefka]

I know, i know, i was just giving other examples to members who may think that their vehicle is at the mercy of the cops no matter where it is.

This thread is getting me all riled up. I have my Crim Pro exam tomorrow. What a ridiculous way to prepare. Someone, quick, ask me about Miranda!

 

[txbondsman]

OK, here's the situation. The cops are called to a traffic accident. Upon arriving at the scene, they notice a strong odor of marijuana coming from a house. They inspect the house from the outside while on the owner's property and notice a back door is open. They proceed to enter and find the motherload of pot. They then proceed to search the rest of the residence. No warrant has been obtained at this point.

The police chief claims that because the back door was open, the police had the right to enter under "special circumstances to secure the residence and inspect for violence".

I've never heard of any special circumstance allowing officers to enter a home "to secure it" because a door was open. You don't forfeit your 4th amendment rights by leaving your door open. Is the search legal? I say it's not. There was no consent from the resident, there were no exigent circumstances (nobody was even home), there was no warrant, and the police were not in "hot pursuit" of a suspect. Those are the only exceptions allowing a warrantless entry by the cops that I can find. Any lawyers on here that know otherwise?

once he smelled the pot, then found the stash, he'll always say, "I heard someone fighting/arguing/saw "what I thought" was blood, etc. No one can dispute what he "thought" he saw. Usually his partner will verify the story. That's their story and they'll stick to it....

 

[1500]

This thread is getting me all riled up. I have my Crim Pro exam tomorrow. What a ridiculous way to prepare. Someone, quick, ask me about Miranda!

handcuffed on the side of the road. Cop starts asking questions. you answer them, you are arrested based on those statements. Does miranda apply?

 

[1500]

once he smelled the pot, then found the stash, he'll always say, "I heard someone fighting/arguing/saw "what I thought" was blood, etc. No one can dispute what he "thought" he saw. Usually his partner will verify the story. That's their story and they'll stick to it....

exactly! its all in articulation.

 

[Stefka]

handcuffed on the side of the road. Cop starts asking questions. you answer them, you are arrested based on those statements. Does miranda apply?

For Miranda to apply, there has to be a custodial interrogation.
Pretty sure that if a reasonable person were handcuffed on the side of the road he wouldn't feel free to leave - so that is custodial.
Dont know enough about the questioning to know whether it was interrogation. To be interrogation, the questioning has to be such that it would cause a reasonable officer to believe that it was going to elicit an incriminating statement. Assuming he was asking such questions, and wasn't just asking if I thought it would rain (at which point I blurted out "yes, I did it! I killed my roommate!") then yes, Miranda applies.

 

[txbondsman]

handcuffed on the side of the road. Cop starts asking questions. you answer them, you are arrested based on those statements. Does miranda apply?

no, he's just doing an investigation. After your under arrest, then yes...

 

[Cutiebaby]

I feel like I am in school and should be learning some thing here!

 

[Stefka]

no, he's just doing an investigation. After your under arrest, then yes...

It doesn't have to be a formal arrest. If there is a restraint on freedom of movement of the degree associated with a formal arrest, then the person is "in custody" for Miranda purposes.

 

[txbondsman]

in the legal books he is maybe theoritically "in-custody", but irl, that won't fly. I guess he is wanting to know what the laws say, so you may be correct going by that standard. Irl, it doesn't work that way. Otherwise, you'ld have to Mirandize every person that you wanted to question for any offence. Ain't happening....

 

[Stefka]

in the legal books he is maybe theoritically "in-custody", but irl, that won't fly. I guess he is wanting to know what the laws say, so you may be correct going by that standard. Irl, it doesn't work that way. Otherwise, you'ld have to Mirandize every person that you wanted to question for any offence. Ain't happening....

Only if you handcuff them. If you pull them over and ask them to get out of the car and then start asking questions they're not in custody, so Miranda doesn't apply. But if four cops have their guns drawn at the suspect, or you put him in handcuffs then his sense of freedom of movement is restrained enough for him to be "in custody" for Miranda purposes.

 

[txbondsman]

cop pulls you over, wants to talk, your freedom to leave has just been lost, try and split. Handcuffs or no handcuffs, your under detention till he says so. From what your saying, he'd have to be Mirandized. In Texas, after he says the majic words, your under arrest, good cops will stay within the law, the 95 percentile will keep asking questions, the people under arrest just keep talking.

Unless you talking about murder cases or cases where it's life w/o parole, etc., the person arrested will sometimes be hollaring the next day "I wasn't read my rights!" to his lawyer. It will go something like this, the lawyer will tell him that he'll make that motion when they go to court, BUT if they go to court, the plea offer that was made previously will disappear and they will be facing ??? years in prison. They usually start to think of what happens when/if they lose, the "did I or didn't I get Mirandized" goes out the window, and he takes the probation or small jail time. That's 99% of the time, that's why you rarely ever here of it, other than TV...

 

[SpyWizard]

you have the answer in #2

either way if they dont' get a prosecution on the owner/tenant.. they pulled a big load.. idiots should have said they heard someone in the premises calling for help..

and you'd be surprised how many doors are "left open" and the police find them that way..

 

[1500]

For Miranda to apply, there has to be a custodial interrogation.
Pretty sure that if a reasonable person were handcuffed on the side of the road he wouldn't feel free to leave - so that is custodial.Dont know enough about the questioning to know whether it was interrogation. To be interrogation, the questioning has to be such that it would cause a reasonable officer to believe that it was going to elicit an incriminating statement. Assuming he was asking such questions, and wasn't just asking if I thought it would rain (at which point I blurted out "yes, I did it! I killed my roommate!") then yes, Miranda applies.

correct! you will do great on your test tomorrow.

 

[Stefka]

cop pulls you over, wants to talk, your freedom to leave has just been lost, try and split. Handcuffs or no handcuffs, your under detention till he says so. From what your saying, he'd have to be Mirandized. In Texas, after he says the majic words, your under arrest, good cops will stay within the law, the 95 percentile will keep asking questions, the people under arrest just keep talking.

Unless you talking about murder cases or cases where it's life w/o parole, etc., the person arrested will sometimes be hollaring the next day "I wasn't read my rights!" to his lawyer. It will go something like this, the lawyer will tell him that he'll make that motion when they go to court, BUT if they go to court, the plea offer that was made previously will disappear and they will be facing ??? years in prison. They usually start to think of what happens when/if they lose, the "did I or didn't I get Mirandized" goes out the window, and he takes the probation or small jail time. That's 99% of the time, that's why you rarely ever here of it, other than TV...

That is true that technically you are not free to leave when a cop pulls you over. But the courts have interpreted that kind of stop differently than a full on guns draw in handcuffs stop. There is a case that makes an exception to the Miranda requirement for roadside questioning - but not when in handcuffs, that is when the balancing comes in.

There are all sorts of "fictions" in judicial opinions. Like in one opinion two officers came on a bus and started asking a guy some questions and asked them if they could search his bag. The court held that this wasn't a stop (which would need RAPS) but only a mere accosting because a reasonable person in his position would feel free to leave the bus. That seemed ridiculous to me. Imagine being on a bus and two armed officers getting on board and you trying to squeeze past them to get the hell off the bus. I don't think I would feel free to leave in that situation, but that is how the court interprets it.

Being pulled over is more than a mere accosting. But a cop can pull you over if he has probable cause to believe that you committed some kind of traffic violation (which means that he can pull you over for just about anything). So once you're pulled over it is a stop (as opposed to a mere accosting or an arrest). The stop doesn't escalate to an arrest until there are serious physical restraints on your liberty or you have been formally placed under arrest. Like if a cop puts you in the car and takes you to the scene of a crime, that exceeds the scope of a stop and you are approaching the realm of custodial arrest.

 

[1500]

TB the courts have now established through case law that handcuffing would lead the reasonable person to conclude that they are under arrest/in custody (wheter they are or not). Therefore if questioning pertinent to the crime, Miranda warnings should be issued.

Although during a routine traffic stop you are not free to go, you are only under investigative detention. The courts find a difference between this and being in custody. The handcuffing is a major factor that the courts have ruled on and made it clear that interrogation while handcuffed whether on the side of the road of other places equals a reasonable person to believe they are in custody. in custody + interrogation = miranda.

But you're correct. unless the stop is being videotaped, its the officer's word vs. the suspect on whether he was mirandized or not.

 

[the_alcatraz]

I can't believe I just read all this.

 

[1500]

I can't believe I just read all this.

you learn anything?

 

[SpyWizard]

never talk to the po po...

If they stop you and ask you if you know why you were stopped?? answer

"Officer why did you stop me"

If he asks "have you been drinking tonight"

repond

"Is that why you stopped me?? to ask me if i've been drinking?"

never answer the cops questions..

never submit to a field Sobriety test, it is them conducting an investigation, and you do not have to testify nor assist the police in this effort.. just say no to helping you into jail..

 

[SpyWizard]

in the words of a supreme court judge..

"What's the big hurry?? we can wait until i have counsel.. "

 

[Metasomatized Ijolite]

This stuff is fascinating to me. I once defended myself against a window tinting citation. I was convicted in magistrate court. Magistrates are elected and are not required to have even attended law school. If the cop says you did it, you will be convicted. But you can appeal without reason. Magistrate court here in my state is not even a court of record. I appealed to the real court and filed a motion to suppress based on the constitutionality of the traffic stop. The only reason I was stopped was so the officer could check my window tinting with his light meter. I argued that an officer cannot articulate "reasonable suspicion" visually. The law requires 35% light transmittance but all the officer could say was that the windows looked too dark based on his experience. The law said nothing about windows "looking too dark", it specifies 35% light transmittance. I won that fight and saved close to $400.00

 

[Metasomatized Ijolite]

I still think the cops fucked up with the weed. They knew what was in the house from the smell. They knew it had to be a large quantity to be smelled from the street. Obviously a large quantity is not going to disappear quickly. Why not make sure you have a warrant in hand and do everything to the letter of the law? Then there's no question at trial. The slumlord that rented the place had another one of his rental homes raided for drugs recently as well. These bastards come in and buy rental property and don't care what happens in it as long as they get the rent money.

 

[txbondsman]

I've been dealing with sheriff's and police on one side, lawyers and the DA on the other for a few days now. What we have here are people talking about the law as it's written/interpreted, and me and SpyWiz saying what really goes on, everybodys right imo.

There's three things that determine most convictions, right or wrong for the "defendant", the info the DA gets from the police report, which is embellished so much by the time the DA's office gets it that it doesn't even sound familiar anymore, and the DA's offer and counter offer if talen to trial, and the amount of money needed for a good attorney to defend you with no guarantee as to the outcome. Most here that figure and just take the plea, especially after they read the arrest report of what "supposedly" happened. It's not worth the risks...

 

[Stefka]

I've been dealing with sheriff's and police on one side, lawyers and the DA on the other for a few days now. What we have here are people talking about the law as it's written/interpreted, and me and SpyWiz saying what really goes on, everybodys right imo.

There's three things that determine most convictions, right or wrong for the "defendant", the info the DA gets from the police report, which is embellished so much by the time the DA's office gets it that it doesn't even sound familiar anymore, and the DA's offer and counter offer if talen to trial, and the amount of money needed for a good attorney to defend you with no guarantee as to the outcome. Most here that figure and just take the plea, especially after they read the arrest report of what "supposedly" happened. It's not worth the risks...

But sometimes they get lucky and get a kick ass public defender (like my prof) who gets everything suppressed.
BTW I rocked that exam.
It was almost fun.

 

[txbondsman]

EXCELLENT!!! good for you. I know that makes you happy and you should be..

 

[wills_got_rythm]

you learn anything?

I hate cops, have no use for them. Biggest back stabbin bunch of mother fuckers ever were. Laws mean nothing to cops, they violate them on a minute by minute basis. All this stuff about "to serve and protect" my ass.

They will say anything to cover their own asses. Its all about how they write the report. A normal everyday middle class citizen doesnt have a chance against a cop, as far as legalities. Then you have lawyers that dont want to work for you. They just walk you up to the judge and have you sign conviction papers then you're fucked......

sorry didnt mean to hijack the thread....had to rant.....

 

[Jacob Creutzfeldt]

I hate cops, have no use for them. Biggest back stabbin bunch of mother fuckers ever were. Laws mean nothing to cops, they violate them on a minute by minute basis. All this stuff about "to serve and protect" my ass.

They will say anything to cover their own asses. Its all about how they write the report. A normal everyday middle class citizen doesnt have a chance against a cop, as far as legalities. Then you have lawyers that dont want to work for you. They just walk you up to the judge and have you sign conviction papers then you're fucked......

sorry didnt mean to hijack the thread....had to rant.....

Prisoners must have access to the internet in your penitentiary.

 

[txbondsman]

I hate cops, have no use for them. Biggest back stabbin bunch of mother fuckers ever were. Laws mean nothing to cops, they violate them on a minute by minute basis. All this stuff about "to serve and protect" my ass.

They will say anything to cover their own asses. Its all about how they write the report. A normal everyday middle class citizen doesnt have a chance against a cop, as far as legalities. Then you have lawyers that dont want to work for you. They just walk you up to the judge and have you sign conviction papers then you're fucked......

sorry didnt mean to hijack the thread....had to rant.....

it's not quite THAT bad, but your about 95% correct, unfortunately....

 

[wills_got_rythm]

Prisoners must have access to the internet in your penitentiary.

LOL...no I've just been around some really shitty cops, they have that holier than thou attitude and I just cant stand people like that.

 

[wills_got_rythm]

it's not quite THAT bad, but your about 95% correct, unfortunately....

But you see that stuff on TV on cops even, 'theres a guy walkin down the street that LOOKED like he was doin something illegal', so what now you cant walk down the street?

Innocent until proven guilty? Yeah Right......

 

[Dial_tone]

Lot of jailhouse lawyers on EF.

 

[Metasomatized Ijolite]

I have to point out one more issue. These guys are growing $200,000 weed operations. They have money. There will not be a public defender involved. These gangs have access to good lawyers. Of course the money paying the lawyer isn't legit but it's still green. That's all the lawyer cares about. I've given up. I found an expensive apartment in the suburbs. I have to wait two months for a vacancy to open up but I will be in a peaceful area. The apartment complex is only a few years old and is classier than my current place. It also costs an extra $200 a month but I figure I will be less depressed. I might be able to work out a better deal on my rent as I know the owner.

 

[chris302001]

BTW I rocked that exam.
It was almost fun.

That's a cool feeling huh? Thinking to yourself as you slam through it......that's right test.......you're my bitch.....

 

[Metasomatized Ijolite]

But sometimes they get lucky and get a kick ass public defender (like my prof) who gets everything suppressed.
BTW I rocked that exam.
It was almost fun.

Congrats on the exam!

 

[1500]

I have to point out one more issue. These guys are growing $200,000 weed operations. They have money. There will not be a public defender involved. These gangs have access to good lawyers. Of course the money paying the lawyer isn't legit but it's still green. That's all the lawyer cares about. I've given up. I found an expensive apartment in the suburbs. I have to wait two months for a vacancy to open up but I will be in a peaceful area. The apartment complex is only a few years old and is classier than my current place. It also costs an extra $200 a month but I figure I will be less depressed. I might be able to work out a better deal on my rent as I know the owner.

Wait till they get taxed on all that shit! That bill will be ungodly. Yes they do tax drug dealers in some states when a large amount of controlled substance is seized.