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  • vehicle consent searches

    While on a traffic stop, does the subject have to be free to go before he can voluntarily give valid consent to a search of his vehicle?

    I feel like I've read Supreme Court cases that say "no". But someone I work with says that the traffic stop must be complete before consent can be given.

    I need to seek further clarification next time I go in, because perhaps it is just department policy to wait till the stop is over, but I really want to say that it is not a 4th amendment violation to ask for consent before the stop is over.

    Anyone point me to the case?

  • #2
    Katz equation

    Katz vs US 389 U.S. 347 (1968)

    This is the case that I think your looking for it comes down to having probable cause. If you have Probable cause then you have a right to search.
    The Katz equation is Government= Comission officer
    +
    Foundation- any search or seizure absent a valid warrant
    = is unconstituational per se except exstinuating circumstances= probable cause

    So in other words if you have probable cause you have a right to search and seize. I check out the court case and yes everything is based off the 4th and your departments policy.

    Comment


    • #3
      I'm referring to consent searches of vehicles, without probable cause - Do you have to wait for until the end of the stop so that the citizen is free to go before you may ask for consent to search?

      Comment


      • #4
        Originally posted by headonstraight View Post
        I'm referring to consent searches of vehicles, without probable cause - Do you have to wait for until the end of the stop so that the citizen is free to go before you may ask for consent to search?
        Absent solid PC I'd say yes. Refer to your department policy and a call to the city attorney wouldn't hurt as well.
        Getting shot hurts! Don't under estimate the power of live ammo. A .22LR can kill you! I personally feel that it's best to avoid being shot by any caliber. Your vest may stop the bullet, but you'll still get a nice bruise or other injury to remember the experience.

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        • #5
          Originally posted by headonstraight View Post
          While on a traffic stop, does the subject have to be free to go before he can voluntarily give valid consent to a search of his vehicle?

          I feel like I've read Supreme Court cases that say "no". But someone I work with says that the traffic stop must be complete before consent can be given.

          I need to seek further clarification next time I go in, because perhaps it is just department policy to wait till the stop is over, but I really want to say that it is not a 4th amendment violation to ask for consent before the stop is over.

          Anyone point me to the case?
          I realize you're in Mississippi, but in WA, no. The subject only has to have the opportunity and ability to revoke consent/limit the search at any time during the search. I know this probably doesn't help because it's not specific to your state...

          Comment


          • #6
            Originally posted by Lt.Snakedoctor091 View Post
            Katz vs US 389 U.S. 347 (1968)

            This is the case that I think your looking for it comes down to having probable cause. If you have Probable cause then you have a right to search.
            The Katz equation is Government= Comission officer
            +
            Foundation- any search or seizure absent a valid warrant
            = is unconstituational per se except exstinuating circumstances= probable cause

            So in other words if you have probable cause you have a right to search and seize. I check out the court case and yes everything is based off the 4th and your departments policy.
            What????
            For the cops out there: You are an adult. If you want to write someone, write them. If you don't want to write someone, then don't write them.

            "Jeff, you are the best cop on this board"-Anonymous Post

            Comment


            • #7
              Originally posted by headonstraight View Post
              I'm referring to consent searches of vehicles, without probable cause - Do you have to wait for until the end of the stop so that the citizen is free to go before you may ask for consent to search?
              Generally you are best served and the later admissibility of anything found is when there is no question as to the voluntariness. That said if you make a traffic stop; complete the requisite steps, return the drivers documents and then solicit consent. The foundation for this is in the potential argument that by retaining the drivers license/registration when you solicit their consent, they could argue that until they got their documents back they were not free to leave.

              In short: The Fourth Amendment test for a valid consent to search is that the consent be voluntary, and voluntariness is a question of fact to be determined from all the circumstances. You will want to review: Ohio v. Robinette, 519 U.S. 33 (1996).

              For some background and further reading on the subject of vehicle searches, visit:
              http://www.fletc.gov/training/progra...rroll.pdf/view
              Originally posted by SSD
              It has long been the tradition on this forum and as well as professionally not to second guess or Monday morning QB the officer's who were actually on-scene and had to make the decision. That being said, I don't think that your discussion will go very far on this board.
              Originally posted by Iowa #1603
              And now you are arguing about not arguing..................

              Comment


              • #8
                Originally posted by sgt jon View Post
                Generally you are best served and the later admissibility of anything found is when there is no question as to the voluntariness. That said if you make a traffic stop; complete the requisite steps, return the drivers documents and then solicit consent. The foundation for this is in the potential argument that by retaining the drivers license/registration when you solicit their consent, they could argue that until they got their documents back they were not free to leave.

                In short: The Fourth Amendment test for a valid consent to search is that the consent be voluntary, and voluntariness is a question of fact to be determined from all the circumstances. You will want to review: Ohio v. Robinette, 519 U.S. 33 (1996).

                For some background and further reading on the subject of vehicle searches, visit:
                http://www.fletc.gov/training/progra...rroll.pdf/view
                Exactly. +1.

                Comment


                • #9
                  It depends on which district court you are under. Some courts require a distinct break in contact and the words "you are free to go", others don't require such a distinct or bright line "end of detention". There are several cases you can look up that offer some guidance. The courts have said it's not what the officer intends to do but how the person feels. ie. if he/she feels free to go.

                  See:

                  Florida vs. Royer

                  Schneckloth vs Bustamonte and US vs Drayton

                  Pledger vs State

                  Ohio vs. Robinette

                  Illinois vs Rodriquez (who can give consent)

                  US vs Macias ( illegally prolonging a traffic stop)

                  US vs Childs ( length of stops)
                  "Constantia comes victoriae"

                  “Let the first act of every morning be to make the following resolve for the day:

                  - I shall not fear anyone on Earth.
                  - I shall fear only God.
                  - I shall not bear ill will toward anyone.
                  - I shall not submit to injustice from anyone.
                  - I shall conquer untruth by truth. And in resisting untruth, I shall put up with all suffering.”
                  ― Mahatma Gandhi

                  Comment


                  • #10
                    In Mississippi you have to tell them they have the right to say no when you ask for consent. They can also revoke consent at any time. Our department requires written consent even though we have it on camera.
                    Geaux Tigers

                    Comment


                    • #11
                      GC Tiger do you have the case law from where it says you have to tell them they have the right to say no? I've never heard of this in MS. They obviously can revoke it at any time. That's not to say that its not good and doesn't help your case if you do tell them they have the right to say no, but I've never seen anything that says its required (always open to learning new things). I believe there is also state case law, I don't remember the case, regarding consent to search when the person is in custody; consent can be valid while they're in custody if you advise them of their Miranda Rights prior to asking for consent then it can still be valid. My department doesn't require written consent, and only about 3/4 of our cars have in car cameras unfortunately, although we all have/use audio recording.

                      Comment


                      • #12
                        is this really that big of a deal...asking from a purely professional of view...not being a "----" because i am applying to depts there from another state...when i worked in my state, we could ask for consent to search on a traffic stop at any time...i am sure that once im hired and retrained at "my local" they will clarify this during training, but just asking does this arise to create a significant legal challenge in court and if so how often....thanks...good topic....stay safe....any MHP out there could clear up the waters, that would be great....

                        Comment

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