TexasCHLforum.com

Jusme wrote:

Javier730 wrote:

mr1337 wrote:

Javier730 wrote: on the Oh wait.

How could one prove that the officer didnt smell marijuana in court? How could you prove what ANYONE did or did not smell at all?

On the same lines, how could you prove that the officer did smell marijuana? As zimmerdesignz said, it happened to his son this year and nothing was found.

That is why an officer "smelling marijuana" alone shouldnt be enough probable cause to search.

Yeah that's what I was saying, the officer "smelling marijuana" may or may not have been the probable cause used. It is a slippery slope to use that as the only reason because a defense attorney will tear you up in court. He may ask "what does marijuana smell like" and if you give an answer comparing it to something else, then you have just blown your case. I have often times smelled marijuana, or even chemicals used for making meth, when making a traffic stop, but I would then began questioning and ask for a consent to search, most of the times they would either confess to having contraband or would allow the search. I was very aware of individuals rights in this regard when a LEO, and never made an arrest where it would ever come into question. But I agree, if you know that they may find something, don't agree to a search. If they search anyway and find something, it will be a defense to prosecution and the evidence could be thrown out. But the best policy is don't do illegal stuff.

That usually works.

Javier730 wrote: That is why an officer "smelling marijuana" alone shouldnt be enough probable cause to search.

I'm fine with that if it factually occurred. However, unlike alcohol, an arrest isn't going to trigger road-side test methodology that would confirm it.
With alcohol, if you smell alcohol on the breath, better darn sure make sure it shows up on a blood/breath test, or that's a lot more shoddy...

Above is the one of the main reasons why there is no down side to unauthorized search if you think about it from the perspective of law enforcement.

I like Jusme very last sentence. I agree & in case, "case dismissed"

I guess I'm a little fuzzy this morning. Due to the MPA, what about his possession of this weapon was illegal? Is the mere possession of a weapon and one of those other substances illegal or does the offender actually have to be under the influence at the time?

C-dub wrote:I guess I'm a little fuzzy this morning. Due to the MPA, what about his possession of this weapon was illegal? Is the mere possession of a weapon and one of those other substances illegal or does the offender actually have to be under the influence at the time?

engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic;

TangoX-ray wrote:

C-dub wrote:I guess I'm a little fuzzy this morning. Due to the MPA, what about his possession of this weapon was illegal? Is the mere possession of a weapon and one of those other substances illegal or does the offender actually have to be under the influence at the time?

engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic;

Okay, so the traffic stop, possibly for speeding or running a stop sign, then makes possession of a handgun illegal? I bet a whole lot of folks don't know about that one.

Wait, that's not right either. I read that backwards in my mind. It is the possession of the controlled substances. Okay

cb1000rider wrote:

Javier730 wrote: That is why an officer "smelling marijuana" alone shouldnt be enough probable cause to search.

I'm fine with that if it factually occurred. However, unlike alcohol, an arrest isn't going to trigger road-side test methodology that would confirm it.
With alcohol, if you smell alcohol on the breath, better darn sure make sure it shows up on a blood/breath test, or that's a lot more shoddy...

Above is the one of the main reasons why there is no down side to unauthorized search if you think about it from the perspective of law enforcement.

I think if there's a pattern of unauthorized searches, law enforcement is opening itself up to a civil suit and possibly a DoJ investigation.

C-dub wrote:Wait, that's not right either. I read that backwards in my mind. It is the possession of the controlled substances. Okay

Right and that was, I believe the OP point that the UCW charge was listed before the others, since it only became UCW after the other charges came to light, but as I said, since the full report is not released to the public, there may have been other reason's for the charge, such as being a convicted felon, or some other reason the arrestee could not legally possess a handgun.

Controlled substance is a felony. UCW would be a Class "A" misd. The marijuana would be a Class "C" if under 4oz. (we don't know the quantity). Class "C" would be filed in city court or JP. Class "A" UCW would be a county court case and the felony possession would be a District Court case. When you have a series of offenses like this, you want to file the charge(s) in the highest court. In the case of the controlled substance possession, that would be a District Court felony. Filing a case in multiple courts that have basically the same elements can result in some of the charges being dismissed. If the Class C case is heard first in city court, hearing the County and/or District case could be considered double jeopardy since elements of the case are similar. Search incident to arrest does not require consent.

The big issue here is the officers have to be consistent with how they stop, enforce, search, etc. If they only search certain people after an arrest, that can be an issue. If they consistently do a search incident to arrest (or a vehicle inventory) and document it, they have better standing.

As to "smelling marijuana", the Courts generally defer to the officer if the only other witness is the defendant. To do otherwise would be damaging to the CJ system. However, an officer that uses that context and does not come up with marijuana or at least residue, will hurt future cases he may want to file. The court has to trust the integrity of someone. It may not always be accurate but it is certainly prudent.

As to the reason "UCW" headlined on one of the stops, the "press report" generated by their records software may head up the arrest with whatever charge is entered first.

MikeyJ wrote: I think if there's a pattern of unauthorized searches, law enforcement is opening itself up to a civil suit and possibly a DoJ investigation.

Mike the problem with that is that civilian complaints are not matter of public record, even though the police work for the public.


There's no way to get visibility into what "might" be an issue unless those complaints are brought to trial. My guess is a small fraction ever see trial, largely due to the costs associated with bringing the issue up. If you've ever had your property searched without consent you might know what I'm talking about. When they find nothing (assuming you're law-abiding) are you going to sue? If you sue, it'll costs thousands and what "damages" are you suing for? What's 20 minutes of your time worth? Your attorney fees are not necessarily paid for and trust me - lawyers are not taking those cases on contingency so it's a huge gamble to make a point.. It'll cost thousands out of pocket to get started.

It's more likely to show up in cases where something was found, but in those cases, what attorney isn't going to challenge the basis for a search?

No system is perfect, but I think technology is helping to sort some of this out.

cb1000rider wrote:

MikeyJ wrote: I think if there's a pattern of unauthorized searches, law enforcement is opening itself up to a civil suit and possibly a DoJ investigation.

Mike the problem with that is that civilian complaints are not matter of public record, even though the police work for the public.


There's no way to get visibility into what "might" be an issue unless those complaints are brought to trial. My guess is a small fraction ever see trial, largely due to the costs associated with bringing the issue up. If you've ever had your property searched without consent you might know what I'm talking about. When they find nothing (assuming you're law-abiding) are you going to sue? If you sue, it'll costs thousands and what "damages" are you suing for? What's 20 minutes of your time worth? Your attorney fees are not necessarily paid for and trust me - lawyers are not taking those cases on contingency so it's a huge gamble to make a point.. It'll cost thousands out of pocket to get started.

It's more likely to show up in cases where something was found, but in those cases, what attorney isn't going to challenge the basis for a search?

No system is perfect, but I think technology is helping to sort some of this out.

The complaints are definitely taken seriously by the departments, they don't budget money for lawsuits, especially if there are several against a certain officer. If there is a lawsuit filed they "sue everybody in sight" so the deepest pockets pay the most. And there are several cases filed each year here in the DFW area for official oppression etc... So there are recourse's for people especially today in the instant information age. While one lone complaint against one officer may not get very far,(he/she will be brought in for an investigation) if the list starts piling up action will be taken.

Jusme wrote:But the best policy is don't do illegal stuff.

And that works 99% of the time. Unfortunately, that 1% of the time that it doesn't, it can get ugly and expensive. It's been my experience that the very worst possible position from which to mount a defense can be that of actual innocence.

Of course, it's worth keeping in mind that even a "traffic stop" for anything besides open container or speeding in Texas is in fact an arrest, and as such a search can be performed as "Incident to Arrest" -- unless something has changed in the last few years.

That is why I will never (again) ever consent to any search under any circumstances...I will always politely decline. Fortunately, these days I guess I don't give off "that" vibe, but apparently I used to.

cbunt1 wrote:

Jusme wrote:But the best policy is don't do illegal stuff.

And that works 99% of the time. Unfortunately, that 1% of the time that it doesn't, it can get ugly and expensive. It's been my experience that the very worst possible position from which to mount a defense can be that of actual innocence.

Of course, it's worth keeping in mind that even a "traffic stop" for anything besides open container or speeding in Texas is in fact an arrest, and as such a search can be performed as "Incident to Arrest" -- unless something has changed in the last few years.

That is why I will never (again) ever consent to any search under any circumstances...I will always politely decline. Fortunately, these days I guess I don't give off "that" vibe, but apparently I used to.

You are correct and I won't try to defend LEOs who step over the line. They are out there, but I think, at least in the areas I travel and the LEOS I encounter there is definitely more of a trend in hiring practices to prevent those type of people from becoming LEOs When I was a LEO most departments were pushed to get warm bodies into the vacant spots, sometimes with bad consequences. I worked for a smaller town, and officers had to remind our chief often of the limitations on unlawful search etc.. He was old school and retired shortly after I started, but some of the old attitudes and practices remained. With the advent of most cars having cameras, and a lot of officers having body cameras, I think we have all seen the good and bad. It has exonerated officers falsely accused and exposed bad policing in other cases. As this becomes even more widespread, and with everyone having cell phone cameras, the bad will get weeded out much quicker. I can say I am proud of my time as a LEO and that there was never an arrest where there was a doubt about violating anyone's rights. My record never had a single complaint, and I know there are a lot of officers out there who can say the same thing. I do feel that there were probably crimes that went un-prosecuted, because I simply didn't have probable cause to push a search, or other questionable practices to make the arrest.