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  • #31
    I think you're fine. Its reasonable to "Frisk" the car under the circumstances you're describing.
    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

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    • #32
      Originally posted by MG108 View Post
      Plain view would be PC for arrest. "Not in plain view" is what happens during a stop and frisk. I am allowed to search you if I can articulate the reason as it pertains to my safety. I can also search the accessible areas of the car. It's not incident to an arrest as no arrest has occured. It well within the Terry stop procedure for officer safety. It's also a cursory search which usually means I am not opening things that I can't articulate as a threat unless I have permission.

      That said, Michigan vs. Long would never happen today. Once contraband is found in the car or on his person, he's under arrest and the search stops until a warrant is obtained or, more likely, it's towed and inventoried.
      What I'm saying is that in Michigan V Long, there was a knife located in plain view on the floor board prior to them seeing the protruding object from the armrest. In that case, they can search anywhere a knife can be held within the vehicle without a warrant.

      In the OP's example, nothing was observed within plain view and it's not the same thing.

      I know you can search someone if you can articulate that it pertains to your safety, but in the OP, it wasn't articulated enough.
      "I sometimes wish that people would put a little more emphasis upon the observance of the law than they do upon its enforcement."
      -Calvin Coolidge

      "Amateurs train until they get it right. Professionals train until they can't get it wrong." - Unk

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      • #33
        Originally posted by MG108 View Post
        It's the exact opposite. If you detain him (i.e. traffic stop) he is not under arrest. If you arrest him for a weapon crime, don't even bother searching the car because everything will get tossed since arrest means he is not getting back in. Tow it and have it inventoried or get a warrant.
        You can't search incident to arrest if the crime to which he's arrested for is the reasoning for your search? News to me... (I understand you can't just search incident to arrest for everything, but you can if it's for fruits of the crime.)
        "I sometimes wish that people would put a little more emphasis upon the observance of the law than they do upon its enforcement."
        -Calvin Coolidge

        "Amateurs train until they get it right. Professionals train until they can't get it wrong." - Unk

        Comment


        • #34
          Originally posted by LPD003 View Post
          You can't search incident to arrest if the crime to which he's arrested for is the reasoning for your search? News to me... (I understand you can't just search incident to arrest for everything, but you can if it's for fruits of the crime.)
          You need to read Gant then. If there is no danger of him destroying evidence and he has no access, the car is off limits for search after he is arrested. You can search him. Not the car if he's not near it. We arrest, impound and inventory/search warrant. Plain view is fine but I'm not risking a felony arrest to open a glove box or trunk if I find something on his person. I'll get it it later with a warrant or inventory.
          "Did that hurt? It looked like it hurt"

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          • #35
            Originally posted by MG108 View Post
            You need to read Gant then. If there is no danger of him destroying evidence and he has no access, the car is off limits for search after he is arrested. You can search him. Not the car if he's not near it. We arrest, impound and inventory/search warrant. Plain view is fine but I'm not risking a felony arrest to open a glove box or trunk if I find something on his person. I'll get it it later with a warrant or inventory.
            From my understanding, that isn't true. You can still search if there is PC of evidence of the crime in the car. Gant just ruled out an automatic "free" search of the car incident to arrest.
            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


            • #36
              "In an opinion delivered by Justice Stevens, the Supreme Court held that police may search the passenger compartment of a vehicle incident to a recent occupant’s arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest."

              As JeffIL said, it simply said we can't just have a free search incident to arrest.
              Last edited by LPD003; 03-16-2011, 11:31 PM. Reason: Addition
              "I sometimes wish that people would put a little more emphasis upon the observance of the law than they do upon its enforcement."
              -Calvin Coolidge

              "Amateurs train until they get it right. Professionals train until they can't get it wrong." - Unk

              Comment


              • #37
                my understanding is that you can search for evidence for the crime. for example: you pull over and arrest for DWI, you can only "search" the car for evidence of DWI and in places that alcohol or an open container could be stashed... like under the seats, glove box, etc, but not trunk. However, if you inventory for tow and you happen to find a kilo of meth in his trunk, you're okay.. (extreme example used)
                “The man in black fled across the desert, and the gunslinger followed."

                "You go for a man hard enough and fast enough, he don't have time to think about how many's with him; he thinks about himself, and how he might get clear of that wrath that's about to set down on him."

                Comment


                • #38
                  ^^^^^ +1 But you're whole department better have a inventory/tow policy stating that every vehicle towed get's "inventoried." Just snapping some pictures of the interior of the vehicle and logging some valuable items will cover your inventory just fine. Please make sure your policy doesn't say search... I've seen it once and about threw up.
                  "I sometimes wish that people would put a little more emphasis upon the observance of the law than they do upon its enforcement."
                  -Calvin Coolidge

                  "Amateurs train until they get it right. Professionals train until they can't get it wrong." - Unk

                  Comment


                  • #39
                    no, we had an "inventory policy" in place before Arizona v. Gant...
                    “The man in black fled across the desert, and the gunslinger followed."

                    "You go for a man hard enough and fast enough, he don't have time to think about how many's with him; he thinks about himself, and how he might get clear of that wrath that's about to set down on him."

                    Comment


                    • #40
                      As did we.
                      "I sometimes wish that people would put a little more emphasis upon the observance of the law than they do upon its enforcement."
                      -Calvin Coolidge

                      "Amateurs train until they get it right. Professionals train until they can't get it wrong." - Unk

                      Comment


                      • #41
                        Originally posted by jeffIL View Post
                        From my understanding, that isn't true. You can still search if there is PC of evidence of the crime in the car. Gant just ruled out an automatic "free" search of the car incident to arrest.
                        Yes, this is my understanding. But I'll go further to explain. Let's say you have the initial subject, acting "hinky", history of assault on police and is a convicted felon. He is not on parole and has no warrants. You pull him from the car for your safety. You hook him up for safety and search him away from the car under Terry.

                        Scenario A: You find a crack pipe in his pocket. He is now under arrest. I search the ash tray and visible areas of the car for evidence of illegal drug use. Search ends after all reasonable/visible places checked. I am not searching for weapons or anything else in the car because if he does have a gun in the trunk or glove box, I don't want that "prohibited possessor" charge to be in jeopardy. I could probably get away with a search of the glove box and any area he could hide drugs. But I can also articulate PC for a search warrant too. I am going to be conservative and cautious with the search incident to arrest because the car will be impounded. Let's say I see baggies and scale in plain view in the back seat. Am I going to pop the trunk looking for the kilo? No, I am not. I am going to use that, along with the pipe to get a search warrant. We all know he's dealing, but there's no rush to get it at the scene.

                        Scenario B: search of the subject yields no contraband, weapons or anything else. I complete my traffic stop with a search of the passenger compartment he is about to reenter. This time I am looking for weapons in his reach. His behavior and past is enough that I am looking for guns under the seat, center console, glove box, etc. In this case I am much less worried about having evidence thrown out than I am missing a weapon that's going to kill me. My search is much more thorough in this scenario than in Scenario A where I will get a warrant or inventory. If I find anything illegal, it switches to scenario A and I still arrest.

                        Even with all that, things are dynamic and it changes depending on circumstances such as passengers or his statements. The key is that if it's incident to the arrest, I can articulate what I am searching for, where and why. I also am thinking whether the search is better off done with a warrant. If it's a Terry frisk, I want to make sure my actions reflect the concern for my safety and others. My dept has orders/procedures for getting "hinky"/threatening people out of their car and doing a Terry stop. I don't want to be in the position of trying to defend my search of the car as a Terry frisk if I decided he wasn't threatening enough to follow the order/procedure. To relate it to the OP, putting him in front of the car is not part of that procedure.
                        "Did that hurt? It looked like it hurt"

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                        • #42
                          I don't think you can have him exit the vehicle and pat him down based solely on his past criminal history. You're going to have to articulate that you believe criminal activity is afoot before you do that. If you can, I'm all for it....

                          Scenario A: If you "stumble" upon a weapon in the glove box while looking for evidence of the crime, (In this case illegal drug paraphernalia and drugs) you just arrested him for, you're fine. You are fine searching the car in the area that the arrestee was recently taken from for those items. If you do happen to stumble upon a weapon within that immediate area, you back out and use that to get a search warrant for more weapons. I don't necessarily need to get a warrant for the remainder of the vehicle for the drugs, but I'm including it in the warrant for weapons just to establish my grounds better.

                          -If I see something in plain view, I have probable cause to search the vehicle anywhere that whatever it is that was in plain view can conceal and I usually do.
                          -- That being said, getting a warrant is your best option like you said, but you don't need it.

                          Scenario B: I'd argue that his history alone isn't going to come into play unless it's coupled by his actions. (Totality of the circumstances) If it is coupled by him being "threatening," you're going to have to articulate what is "threatening" about that person and put it in your report. Simply saying he was being threatening isn't going to cut it. (i.e. "He was not listening to my verbal commands... he was looking back at the vehicle frequently while I was speaking to him consistent to that of someone hiding something... He began shaking or got defensive by yelling after I asked him if anything was in the vehicle... He went out of his way to place himself between his vehicle and myself etc...) The courts frown upon you basing your actions alone on their past or not articulating well what the person was doing to be threatening. (Not saying you are.)

                          PS I'm on your side...
                          "I sometimes wish that people would put a little more emphasis upon the observance of the law than they do upon its enforcement."
                          -Calvin Coolidge

                          "Amateurs train until they get it right. Professionals train until they can't get it wrong." - Unk

                          Comment


                          • #43
                            Originally posted by JTShooter View Post
                            You pull a guy over. He moved around more then usual, is acting "hinky" when you contact him. Pull him out, pat him down. Check him and he has a long history of violent crimes with weapons. You get that feeling from him, so to make sure he doesn't hop back in his car and grab a firearm and pop you before you leave, you have him stand in front of his car (yeah, I know) and you look under his seat for a pistol. You don't find anything and you cut him loose.

                            Legal or illegal "frisk"?

                            Terry v. Ohio, Michigan v. Long, and Arizona v. Gant... any others?
                            I say legal and here is why:

                            Criminal history confirms violent crimes w/ weapons, officer had reasonable belief he was in danger

                            Suspect was not in custody, no hand cuffs, was not told he's under arrest, and could walk away from the car if he wanted to (didn't state the reason for the stop)

                            Search was conducted in the area that the subject had immediate control of, if he were to be left alone in the car (while the officer wrote a ticket or walked back to the patrol car)

                            In Indiana it's a good search as long as your looking for weapons and can articulate the degree of officer safety issues
                            This is for all you parents that like to put your kids names on the back of your mini-vans.

                            STOP IT! There are predators that will use that information against them!

                            Comment


                            • #44
                              On Arizona v. Grant the hiccup is "immediate control"

                              The court affirmed the suspect had no control over the vehicle as he was locked in the patrol car in cuffs.

                              Had the suspect been standing next to the car, no cuffs, the discovery would have been good.
                              This is for all you parents that like to put your kids names on the back of your mini-vans.

                              STOP IT! There are predators that will use that information against them!

                              Comment


                              • #45
                                OY vey, you guys are killing me.

                                Good search based on what the op wrote but stay away from words like hinky and officer safety. Articulate it out.

                                You can still search incident to arrest, just spell out why there MIGHT be evidence of the crime still in the car.

                                And for God's sake don't any of your areas allow Carroll searches.

                                You all are making this mmuch more complicated than it really is
                                Today's Quote:

                                "The difference between stupidity and genius is that genius has its limits."
                                Albert Einstein

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