LEGAL QUESTION

[ghostdog128]

you guys need to read up on laws and case law.. Ever heard of Terry vs. Ohio. It's called a Terry stop or Terry search...An officer can search a suspect or his vehicle and anything within an "arms reach" WITHOUT a warrant, PC, or consent if that officer can articulate that he had suspicions his safety was in jeopardy. It's VERY VERY easy to articulate this in most situations.

An "arms reach" as defined by the courts is anything withing the interior of the car including the glove box as long as it is not locked. This also includeds the TRUNK of the car if the car in question has fold down rear seats that can access the trunk.. Guarantee they got into the trunk on a Terry stop. Bottom line is your friend is fucked. Besides at that he had distribution amounts anyways and he's a dealer.. he's done..

 

[comradebillyboy]

Hey guys, I got a question for any lawyers in here


The other night my buddy got pulled over for a broken headlight ... They searched his car, and his trunk and found 25 grams of coke and a scale. My question is, they're alleged "probable cause" to search the car was that they smelled alchohol on his breath. Seems rational, but they never gave him a sobriety test or a breathalizer or even a piss test. They asked him if they could search his car and he sternly said "no," but they proceeded anyway. He wasn't charged with a DUI only with the coke they found. Anyways this seems like an illegal search to me, is it?

the constitution is your friend use it. do not ever consent to a search for any reason, do not ever talk to a cop without legal representation. do not ever waive your rights under the constitution for any reason. America is turning into a fucking police state where our civil liberties are diminished every day. always assert your legal rights. no warrant no probable cause no legal search. don't ever give a cop permission to look at anything of yours unless he has a warrant, and the warrant specifies what he can look for.

 

[hardhanger]

So when he goes to court and they find the cops had no probale cause does this cat get his blow back?

 

[parttimer]

Terry stop has to do with a pat down, not a vehicle search. The vehicle search only covers the "lunge" area. I don't think think its reasonable to say that someone can gain access to fold down seats from the drivers seat.

Terry V Ohio

The Court held that police may briefly detain a person if they have a reasonable suspicion that the person has committed, is committing, or is about to commit a crime. Because of the important interest in protecting the safety of police officers, police may perform a quick surface search of the person's outer clothing for weapons if they have reasonable suspicion that the person stopped is armed. This reasonable suspicion must be based on “specific and articulable facts” and not merely upon an officer's hunch. This permitted police action has subsequently been referred to in short as a “stop and frisk”, or simply a “Terry stop”. The Terry standard was later extended to temporary detentions of persons in vehicles, known as traffic stops.

 

[scott123456789]

I have a friend whose father is a retiring cop. The Cop was never part of the Click so he never got promoted and was still a patrolman at retirement. Anyways his dad had told him on many situations the other cops lied about stuff on arrests etc. If you can not afford a good attorny you are screwed (most people). If you are wealthy you will get off. Often he click group of cops would do stage things etc. Who is going to challange them especially after they find the stach of drugs.

 

[GoneForever]

That terry law is wrong. Here's the deal, if you've got anything in plain site, they can search your whole car without a warrant. If you fail a dui test they can do it. Even if you dont have you license with you or expired insurance they can do it. BUT other than that, unless they have very strong probable cause they cannot search shit. And if you keep somethiing in the trunk thats in a locked box, the first need a warrant to open the trunk and need a sepearte warrant to open the box(if locked).

 

[GoneForever]

And another thing about the original story here. Cops have to write a report about the case in a very short time frame. Therefor if they try to plan a story its gonna be really hard unless they did it right on the spot. More than likely they fuked up on the report and your bro's lawyer should get thid dropped.

 

[elvisman99]

25g damn!!! Was he charged with trafficing?

Anyways Shoestring right, they need an arrest, concent to search, something in "plain view," or a k-9 indicating drugs inside vehicle to search your vehicle.

I wonder if your bro's telling the whole story. Either way, he's gonna need a good attorney.

Thats not even an ounce bro.. I f charged hes lookin @ a 3rd degree felony at worst but let6s hope for the best...

 

[parttimer]

Yet another Terry Law:

Stop & Frisk Rule (Terry v. Ohio)-- a frisk or patdown of the outer clothing is NOT technically a search, but whenever police restrain a person’s freedom to walk away, a seizure has occurred. To frisk, police must have "reasonable suspicion" (not merely a can’t-put-into-words hunch) and the frisk must be for weapons only, unless under the plain feel exception. Furtive movements, inappropriate attire, carrying suspicious objects, vague answers to questions, refusal to identify oneself, and appearing to be out of place are all grounds for articulable suspicion. This has been extended to roadside stops, luggage, suspicion of narcotics possession (in many cases, also requiring a trained dog to establish probable cause). Often produces evidence other than weapons that come into "plain view", demonstrating the interrelationships among these precedents.

Terry has to do with checking a person. Not searching a car based upon an odor or seeing something.

Now in Ohio Officers cannot search a trunk based on plain smell as noted in State V Wise, State V Moore and State V Farris. Again this is ONLY Ohio, it may be different somewhere else.

The state also argued that the "plain smell" doctrine provided a sufficient
basis for Temple to seize and search the backpack. However, the plain smell doctrine,
articulated in State v. Moore (2000), 90 Ohio St.3d 47, can only be used to establish
probable cause and is not an exception to the warrant requirement. Id. at syllabus. The
odor of marijuana emanating from the vehicle was sufficient to search the vehicle; the
odor created probable cause and the automobile exception to the warrant requirement
applied. The authority to search given in Moore does not extend to the vehicle's trunk.

THE STATE OF OHIO, APPELLEE, v. FARRIS, APPELLANT.
[Cite as State v. Farris, 109 Ohio St.3d 519, 2006-Ohio-3255.]
Criminal law — Search and seizure — Traffic stop — Incriminating statements
made by defendant after Miranda warnings confirming statements made
before warnings are inadmissible — Physical evidence seized as a result
of inadmissible statements is also inadmissible — Odor of marijuana gave
rise to probable cause for warrantless search of interior of vehicle but not
its trunk.

 

[tatteredxangelx]

lots of good answers and positive encouragemnet here ... I appreicate it fellas.

 

[ghostdog128]

Terry stop has to do with a pat down, not a vehicle search. The vehicle search only covers the "lunge" area. I don't think think its reasonable to say that someone can gain access to fold down seats from the drivers seat.

Terry V Ohio

It sure does apply to the vehicle as well as the trunk as long as the car has fold down rear seats (it's established case law now and has been for years, in regards to fold down seats) and as your first quote noted it was applied to vehicles... again.. as I said Terry vs Ohio was the original decision there has since been new case law on it for what I have said above. The US Supreme court has ruled there are 3 places that a citizen does not have the same right and expectation of privacy: Airports, ports of entry, and vehicles. And I never said full vehicle searchs either, and you must never have worked LE before to think that someone can't gain access to the trunk by way of rear fold down seats from the drivers seat. Years ago when I was an MP in the army we have a training exercise that simulated just that and it took the driver had access in less than 6 seconds to go from the drivers seat and get his gun in the trunk. Plenty of time to get a gun out.

 

[parttimer]

From Stanford Law

Terry Stops for Cars: the same logic applies when cops stop a person in a car. The cop can
search the inside of the car for a weapon (in order to ensure the safety of the cop).
• The cop may look anywhere in the car that the person could reach for a weapon. He
may not look inside bags.
• The trunk: The cop may not search the trunk unless someone in the car can reach into
the trunk (like in an SUV).

Yet another:

f. The automobile exception to what may be searched incident to arrest–
i. can search the car (not trunk) after lawful arrest from automobile stop, ok to search person and the passenger compartment of automobile, including glove compt and luggage in car. – NY v. Belton (SCT 1981 – car stopped for speeding; PO smells marihuana and sees a suspicious envelope – arrests the occupants and moves them from car to spots along highway)

The only think I have found remotely near folding rear seats is that of a hatchback in the Mayo case. I agree that a search should be allowed in that particular situation but have found no documents to support folding seats. I can say within the last year I have seen a court ruling saying you can not search a trunk based on plain smell.

 

[OuchThatHurts]

From Stanford Law

Terry Stops for Cars: the same logic applies when cops stop a person in a car. The cop can search the inside of the car for a weapon (in order to ensure the safety of the cop).
• The cop may look anywhere in the car that the person could reach for a weapon. He
may not look inside bags.

Stanford refers to police officers or law enforcement officials as "cops"??? That's funny!

 

[parttimer]

It originally said Po-Po.

 

[ghostdog128]

From Stanford Law


Yet another:


The only think I have found remotely near folding rear seats is that of a hatchback in the Mayo case. I agree that a search should be allowed in that particular situation but have found no documents to support folding seats. I can say within the last year I have seen a court ruling saying you can not search a trunk based on plain smell.

I'm looking up the case law now for it.. but based on the criteria how is an unlocked glove box any different from a trunk that has access by way of rear fold down seats. If a suspect is standing on the passenger side of the vehicle next to the glove box he can access a weapon. If he is standing on the passenger side rear door next to the rear access fold down seat he can access a weapon. Or anyone inside in the rear seat can easily access a weapon. I'm not arguing a full search, but a cursory search for weapons and then contraband in plain view on that cursory search would be admissable. Nor am I arguing a terry search based on smell either..

Give me minute to look up the case law.

 

[ghostdog128]

actually you quoted this in one of your posts


f. The automobile exception to what may be searched incident to arrest–
i. can search the car (not trunk) after lawful arrest from automobile stop, ok to search person and the passenger compartment of automobile, including glove compt and luggage in car. – NY v. Belton (SCT 1981 – car stopped for speeding; PO smells marihuana and sees a suspicious envelope – arrests the occupants and moves them from car to spots along highway)


US vs Rose expanded on New York vs Belton allowing for the seach of the trunk, incident to arrest. And getting back to the original question, I never said a Terry Search based on smell. I said it's easy to articulate a Terry Search based on the facts of the initial stop. And that a

Also the "lunge area" you referred to earlier was expanded to cover the entire interior of the car and areas that a suspect had easy access too under Michigan vs Long.

A locked trunk does not qualify under a Terry search, but one with rear folding access seats does qualify as an unlocked container just like an unlocked glovebox.

Searching a trunk with rear folding seats which gives quick and easy access to a trunk would easily fall under Michigan vs Long or

United States v.Johnson, 637 F.2d 532, 535 (8th Cir. 1980); United States v. Rainone,
586 F.2d 1132, 1134 (7th Cir. 1978), cert. denied, 440 U.S. 980 (1979):

(W)here the suspect is driving an automobile, a patdown of the
outer clothing may not be sufficient to assure the safety of the
police officer. In those cases there is the real possibility
that a weapon may have been secreted in a part of the automobile
readily accessible to the suspect. This is particularly true
where the suspect remains in the car, but is also true even
where the suspect has been removed from the car. In the latter
instance there is still a risk that the suspect may break away
or that he may have a motive to kill the officer even after
returning to his car.


Or

"(T)he suspect * * * may have a motive to kill the officer even
after returning to his car * * * (if he) has engaged in criminal
activity which he believes will be later discovered. Since the police
officer * * * has learned the suspect's identity, he will often be
able to connect the suspect to the later-discovered crime * * * ."
United States v. Rainone, supra, 586 F.2d at 1134-1135 & n.3.

Again a search of a trunk with rear fold downs seats would fall under this just a an unlocked glovebox would.

 

[ghostdog128]

ah found it finally ...

Turner v. U.S., 623 A.2d 1170 (1993). allows for cursory search of trunk for weapons based on Terry vs Ohio and Michigan vs Long, extending into the trunk or hatchback, whereas the trunk is considered part of the passenger compartment if the rear seats fold down allowing access to the trunk from inside the vehicle. Again, as I said before I never argued a Terry search based on smell, but it would be easy enough to articulate the need for a terry search of the car, and anything found in plain sight upon that search is admissable.. I was assuming in the orginal post that the drugs would have been in plain sight.. but hey what do I know I'm an RN not a lawyer.

 

[parttimer]

Thank you for finding it! I looked for about 4 hours and couldn't!

 

[ghostdog128]

Thank you for finding it! I looked for about 4 hours and couldn't!

No problem, also just to expand on something earlier too.. United States v. Holifield, 956 F.2d 665, 666-67 (7th Cir. 1992), allows for the searching of LOCKED gloveboxes , during a terry search of a vehicle.. I would think that could be expanded to any locked container in the vehicle since the basis for this decision was that a suspect could easily unlock a locked glovebox with only a moments more work than an unlocked one...I didn't know that at all. This legal stuff is very interesting.. Maybe I should have been a lawyer instead of a nurse. HAHA

 

[parttimer]

Is the search of a locked glove box only if they have access to a key? I saw that somewhere as well that covered lock containers if a way to open it without destroying it was legal.