Consent to Search

[marksiwel]

In United States criminal law, probable cause is the standard by which a police officer has the authority to make an arrest, conduct a personal or property search, or to obtain a warrant for arrest. It is also used to refer to the standard to which a grand jury believes that a crime has been committed.

Al la wikipedia

I can't really give a better explanation. Reasonable person doesn't mean a fellow peace officer...it is easy to for us to understand each other's descriptions...it means a jury of 12 people - would THEY believe a person might have committed a crime. That is PC in a nutshell.

What a slippery slope that seems to be

[seamusTX]

In United States criminal law, probable cause is the standard by which a police officer has the authority to make an arrest, conduct a personal or property search, or to obtain a warrant for arrest.

I saw a semi-humorous list of driver behaviors that are supposedly probable cause for a vehicle search:

• driving too fast
• driving below the speed limit
• driving exactly the speed limit
• run-down, dirty vehicle
• expensive new vehicle
• driver looks nervous
• glances at vehicle repeatedly
• is sweating
• acts sullen
• acts too confident
• does not respond to questions
• talks too much

You get the picture.

- Jim

[marksiwel]

In United States criminal law, probable cause is the standard by which a police officer has the authority to make an arrest, conduct a personal or property search, or to obtain a warrant for arrest.

I saw a semi-humorous list of driver behaviors that are supposedly probable cause for a vehicle search:

• driving too fast
• driving below the speed limit
• driving exactly the speed limit
• run-down, dirty vehicle
• expensive new vehicle
• driver looks nervous
• glances at vehicle repeatedly
• is sweating
• acts sullen
• acts too confident
• does not respond to questions
• talks too much

You get the picture.

- Jim

Breathing
"Eye Balling" the Officer
"Stink Eying" the Officer
Its Tuesday


Nah, overall the Police are a well run bunch in America. Its once they start getting promoted to Chiefs ect that the Power seems to get to their head.
Case in Point
Robert F Crowley gets a Readng Bonus
http://massbackwards.blogspot.com/2005/ ... 54580.html" onclick="window.open(this.href);return false;
OR he did
I think he died this year.
This is also the Chief of Police in Mass who denied a man a gun permit, for stealing a Chicken, when he was 9, back in the 1940s
Did I mention I love Texas? I dont gotta ask Daddy for permission

[marksiwel]

Sorry if this is coming off as LEO bashing, I really dont mean it to be. I have alot of respect for the men and women who put their life on the lines everyday. Its living with a Darn Soon to be Lawyer, she's got me jumping at Shadows, all I ever hear from her (and this board to an extent) are the BAD LEO run ins.

I'll reverse this trend.
I had an officer help tow my car free of Charge back to my house. I was outside his Jurisdiction (I was in Irving and he was a Coppell Cop) my Car broke down, he said he "Recognized" my car (It was an old beat up Dodge Neon with Sponge Bob Stickers and Peeling paint (the stickers were my friends idea of a joke)) and knew I graduated Coppell High.
He gave me a ride home and we listened to Metallica! It was awesome.

[srothstein]

In United States criminal law, probable cause is the standard by which a police officer has the authority to make an arrest, conduct a personal or property search, or to obtain a warrant for arrest. It is also used to refer to the standard to which a grand jury believes that a crime has been committed.

Probable cause is that set of facts and circumstances that would lead a reasonable person to believe that a crime had been committed or that specific evidence of a specific crime was at a specific location.

That is the definition I was taught and it still holds true. It really doesn't help much but it is the best the courts have come up with. I am allowed to use any fact that I have legally come into knowledge of, along with any circumstances that help explain those facts. Examples of facts include the knowledge that the suspect is in a high crime area (usually must specify what crime and how it is higher than other areas), what I saw that made me suspiciou to begin with (including smelled or felt as part of saw - I smelled the odor of marijuana coming from the car for example), and the suspect's behavior (facts - sweating on a cool night, restlessness, mood shifts rapidly, glancing at car repeatedly, etc.).

Circumstances include things like the suspect could not tell me where he was going or what he was doing, the suspect telling me he had left LA and was headed to NY (and had been on the road 30 minutes, yes a DWI did tell me that), the knowledge that the suspect was in a rented car and many drug couriers are now using rented cars when driving from the Valley to San Antonio.

So, when you put these all together, if the mythical average reasonable person would believe that a crime was being committed you have probable cause. It cannot be a cop, a judge, or a defense attorney, because they all have slightly biased views of the understanding of things. It must be the supposedly totally non-interested third party (that is really a judge's supposed role too but we recognize they cannot keep it all the time).

This is why pointed out that it is better to make the officer have PC and fight it. I might be able to convince a judge that the cop's knowledge of what things mean is different from the average person's knowledge and get the judge to deny the probable cause.

As an aside, I think it is interesting to note that almost everyone on here that I know has a background in law enforcement has posted advising people not to consent. When the cops tell you this, it probabaly bears paying attention to.

[srothstein]

I just finished watching both parts and it is a real eye opener. I think if I should ever find myself going to be "interviewed" it will go something like this:

Police (After reading Miranda): Question?

Me: Officer, I would like to consult with my lawyer before answering any questions.

Police: Why? Are you guilty?

Me: Because I'm not an expert in the law.

Right here is when you went wrong and left yourself open for the officer. The correct scenario should go something like this:

Police (After reading Miranda): Question?

Me: Officer, I will not answer any questions without speaking with my attorney.

Police: Why? Are you guilty?

Me: I will not answer any questions without speaking with my attorney.



Note the change from "I would like" which can be argued as slightly ambiguous to "I will not" which is a clear and unequivocal invocation of your rights. More important, not the second answer is the same. You do not have to explain anything and if you do, you are answering questions and starting a conversation. Getting you into a conversation is just one way to get you to let your guard down and make a mistake.

[gigag04]

True dat....to all the above.


If I am ever in a critical incident like a shooting...it's not if, but when it gets investigated...I won't speak with the investigators (for the criminal portion). Per our policy I have to submit a report to our internal Professional standards division, but that is not prosecutable (Garrity warning etc).

Usually an outside agency will investigate and I wouldn't say two words to them unless they arrest me. Then I would give name address and DOB. and stop.

[frazzled]

Rule One is never volunteer for anything
but that might be a close second.

Rule one. Never consent to anything.

Thats true. However I always volunteer for free cookies.

[Dragonfighter]

As an aside, I think it is interesting to note that almost everyone on here that I know has a background in law enforcement has posted advising people not to consent. When the cops tell you this, it probably bears paying attention to.

Indeed it does. I have always thought this way, but when I have LEOs telling me this you can bet any possible vacillation has been eliminated. Thanks.

Note the change from "I would like" which can be argued as slightly ambiguous to "I will not" which is a clear and unequivocal invocation of your rights. More important, note the second answer is the same. You do not have to explain anything and if you do, you are answering questions and starting a conversation. Getting you into a conversation is just one way to get you to let your guard down and make a mistake.

(corrected typo, I think)

Sound advice. Any arrest irrespective of the LEO's personal opinion now is an adversarial situation, they don't warn "Anything you say can and will be used against you in a court of law" for no reason.

But before Miranda, I have questions. I have always been of the opinion that when I call 9-1-1 after a shooting I would say something to the effect, "I am [name], I'm at [location], I had to shoot someone because they attacked me, send an ambulance and police." I would not tell them anything different or elaborate unless they asked for a description of myself. I had worked this out before Ayoob did his informative video. Good?

Next, again before Miranda at the location, I always thought that answering bare fact questions with, I am "X" born "X", there he is, my weapon is here, he came from there, the witnesses are over there (Ayoob) etc. were okay. My question here is three fold, as an LEO what would information would help you size up the case AND ease your attitude about the CHL? What is admissible before Miranda and at what point do you clam up and ask, am I under arrest?

Usually an outside agency will investigate and I wouldn't say two words to them unless they arrest me. Then I would give name address and DOB. and stop.

I fall under Garrity as well and this has always been my attitude. Good call. Oh yeah, I almost forgot...

[casingpoint]

In the foolishness of my heart, I thought that the truth would be a defense. - Harold Fish

[srothstein]

(corrected typo, I think)

yes, thank you, I had left the e off note and it can change the meaning.

Sound advice. Any arrest irrespective of the LEO's personal opinion now is an adversarial situation, they don't warn "Anything you say can and will be used against you in a court of law" for no reason.

But before Miranda, I have questions. I have always been of the opinion that when I call 9-1-1 after a shooting I would say something to the effect, "I am [name], I'm at [location], I had to shoot someone because they attacked me, send an ambulance and police." I would not tell them anything different or elaborate unless they asked for a description of myself. I had worked this out before Ayoob did his informative video. Good?

Next, again before Miranda at the location, I always thought that answering bare fact questions with, I am "X" born "X", there he is, my weapon is here, he came from there, the witnesses are over there (Ayoob) etc. were okay. My question here is three fold, as an LEO what would information would help you size up the case AND ease your attitude about the CHL? What is admissible before Miranda and at what point do you clam up and ask, am I under arrest?

OK, the questions here are very important and of great danger to you. The rule is that anything you say, before or after you are warned of your rights, is admissible in court UNLESS you are in custody, have made the unequivocal invocation of your rights, and are asked questions by the government agents that are designed to gain information about the crime.

So, if you are not in custody, you do not have to be advised of your rights and anything you say can be used. This includes the call to 9-1-1. it also includes the first explanatory comments to the officer when he arrives at the scene. And, it includes spontaneous exclamations you make when you are in custody and have invoked your rights.

But there is an old saying about the first liar wins. The person who calls the police first is generally setting the officer's frame of mind and how he will see things. So, yes, explain that you were forced to shoot someone to protect your life, but not much more. When the officer arrives, explaining to him that you were forced to shoot someone, giving him your ID and weapon, and then saying you want a lawyer is also probably a good idea, but it is somewhat risky. It is very likely that the officer may want to believe you and then will look very skeptically at you when you want a lawyer. Most cops will think a normal honest person will talk with them and cooperate. So, invoking your rights is likely to make them more suspicious of you. It might make it harder that night to deal with, but it probably makes the overall case easier to deal with.

And remember that there are some questions that you must answer. These include your name, date of birth, and home address. You cannot lie about anything material to the investigation, but other than that, you can remain silent until you talk with your lawyer.

Many people ask for medical attention because of their nerves. If you have just been involved in a shooting, this is probably true and you should do it. It is one way to postpone serious questioning until your lawyer can get to you.

The difference between tactics and strategy is the time frame involved. Talking with the cops about what happened is probably good tactics for going home that night and bad strategy for staying our of jail long term.

[gigag04]

The first most cops will do if they are in a shooting is call the admisable ir lawyer...I think they would understand. Most of the content if transferred in how things are said. If someone is a jerk about it, then sure, they will be responded one way. If someone respectfully says they would like to have a lawyer there for their own best interests, I wouldn't blame them.


Again...for the people bringing up miranda - it ONLY applies if you are in custody and being questioned. If you sit in the back of the car, or in the jail and strike up a conversation with some other person (non LEO) and you say how bad you feel that you killed that guy for no reason - that is admissible. Likewise if you run out of a building going wow I just shot him and he died - that is also fair game to use (Res Justae I think is how it's spelled).



This has deviated again so if we need to split off I'm good with that.

[Dragonfighter]

Thanks guys, good counsel.

Pr 11:14 Where no counsel is, the people fall: but in the multitude of counsellors there is safety.

[dihappy]

If one (me for instance) has nothing illegal in my vehicle - how often in such a scenario where "I give my consent to a search" will there be a horrendous outcome, that is say, they ruin upholstery/create damage, etc.

The first question is whether you have had complete control of your vehicle at all times.

People have run into trouble because one of their kids had a friend in the vehicle who smoked a joint and left some traces. The vehicle owner gets into trouble without having done anything wrong.

Another possibility is that you run into a cop who thinks that hollowpoint bullets or magazines that hold more than ten rounds are illegal. There are such cops.

- Jim

Or the cop who thinks your "small" Pepper Spray canister is illegal.

[VoiceofReason]

Have things changed that much since I wore a badge?

At that time an officer could search the area that was within reach of the driver without a warrant or permission. This was for the protection of the officer.

We once stopped a vehicle and I saw the driver reach down as if reaching under the seat. The other officer took him to the front of the vehicle and I found a handgun under the seat. Turned out to be a convicted felon. The gun belonged to his wife.