Consent to Search

[Dragonfighter]

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.

I would say that reaching under the seat during a stop would be probable cause.

[chabouk]

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.

I would say that reaching under the seat during a stop would be probable cause.

Reaching under the seat would be a furtive movement that could trigger Terry, which is the basis for allowing a basic search for weapons.

This is terribly abused, by the way. Many "officer safety" searches wind up searching everything in the passenger compartment, whether or not it could hold a weapon. Hint: officer, that plastic baggie you just felt could not possibly hold a weapon, so the fact that it holds a quarter ounce of marijuana should be suppressed at trial. But, it's not, not in today's environment.

[srothstein]

This is terribly abused, by the way. Many "officer safety" searches wind up searching everything in the passenger compartment, whether or not it could hold a weapon. Hint: officer, that plastic baggie you just felt could not possibly hold a weapon, so the fact that it holds a quarter ounce of marijuana should be suppressed at trial. But, it's not, not in today's environment.

You are behind the times by about two years or so. There was a SCOTUS case based on just this principle, except it was a crack rock instead of marijuana. The frisk was being done and was found legal. During the frisk, the officer felt a crack rock, used the feel as an excuse to go in the pocket and get it, and then charged the suspect for possession.

The court ruled that the plain view doctrine applied, as did Terry. Combined to give the new doctrine the plain feel doctrine. If you are legally in a place you are allowed to be and conducting a legal search, anything you see, feel, or smell (the smell rule is also old), is probable cause for a search and arrest. As I understand the court's thinking, it is along the lines of if I can tell it is a weapon by feel, why can I not tell it is some other illegal object. I fI can tell immediately it is an illegal object, it is legal for me to get and charge for.

So, if I can tell it is a plastic bag of marijuana by feel, from squeezing the outside of the pocket, I can legally go in to the pocket, get it, and charge the suspect.

There is an old saying about bad facts making for bad case law. It is also true that bad lawyers make for bad case law. In this case, my first question was how the officer could tell it was a crack rock, as opposed to a piece of cement or a stale piece of bread. I guess the defense lawyer did not ask this question or did not make the point strongly enough. Anyway, the current state of US law is that I can use the frisk, find drugs, and make the arrest.

[dehalter]

Rule one. Never consent to anything.

Amen!!! Check this out, it is good advice!!

http://video.google.com/videoplay?docid ... 8153586646#" onclick="window.open(this.href);return false;

[G.C.Montgomery]

Hi all. I'm new to the board. I submitted my app a couple of weeks ago and am in the waiting period...

I have a question about searching if pulled over (after I get my license). Let's say I'm cruising down 35 and get pulled over for speeding. I am carrying, hand the officer my DL & CHL and inform him that I have a handgun in the console.

By having a CHL have I waived any of my rights regarding a consent to search? If the officer, as they often do, asks to search my vehicle, can I still say no until they get a warrant?

I just am not clear on whether admitting that you have a handgun in the car gives them probable cause.

Thanks!

A CHL does not waive your rights with regard to searches during a traffic stop. And it may be that I just get lucky (that seems unlikely) but, I was pretty young the last time I was asked to consent to a vehicle search. If you've presented both the DL and CHL, an affirmative answer to the question of whether or not you have a gun in the car alone doesn't jump to PC. That doesn't mean there aren't officers who won't use it as PC but, you won't win any arguments with an officer about that on the street. Generally, that is why PDs have internal affairs divisions and why we have lawyers to deal with those guy after the fact.