Your 4th Amendment Rights and You
#1
02-23-2006, 01:32 AM
Your 4th Amendment Rights and You
I don't specifically know where to put this thread, since it does deal with rights that come under concern to most import drivers, but it also doesn't seem to fit in any other sub-forum, so I've decided to put it here.
Additionally, I am not familiar with the import enthusiast community, while I am familiar with privacy case-law and legal precedence. That said, I am writing this given what I know, and if you know of specific laws that allow for police to search your import car (or any car) without probable cause, or if there is a law that significantly lowers the probable cause requirement, please let me know.
That said, it is important to know the wording of the Fourth Amendment and it's applications, as well as it's courtesies and precedents.
The Fourth Amendment reads that "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
The Fourth Amendment only protects you and me from unreasonable searches and seizures, and cannot protect you when you have been arrested, when the police are in hot pursuit of a crime, when the police are acting in an emergency situation, or when you have consented to the search. Additionally, if the police have a probable cause to search your vehicle, they need none of the above. And there are a surprising number of ways to give a police officer a probable cause - from running your mouth to playing unsavory music (in their eyes) to driving an apparently heavily modified import car.
Additionally, the Supreme Court has held that individuals have a diminished right to privacy in a vehicle because "its function is transportation and it seldom serves as one's residence or as the repository of personal effects. . . . It travels public thoroughfares where both its occupants and its contents are in plain view." ( Cardwell v. Lewis)
This allows that police have much greater power for warrentless searches of vehicles than residencies. However, an officer still must have probable cause to make a traffic stop, and must either choose a specific vehicle based on that probable cause (traffic stop), or stop every single vehicle in an area (checkpoints).
Further still, once an officer has made a traffic stop of a car, the officer may search the vehicle on "plain sight" (those items that are in view of anyone within a reasonable distance of the vehicle - anything that can be seen with the naked eye that does not have to be moved to be seen) at any time, regardless of the legality of the traffic stop. However, if the officer has a reasonable belief that you have a weapon or illegal paraphernalia, the officer may conduct a "Terry search" (pat-down) of your person and the vehicle's passenger area, but not the passngers. If such a search for weapons or illegal paraphernalia turns out to be wrong, but the officer comes into contact with other illegal materials, the search is considered valid and the materials found are determined to be legally obtained and usable against the owner, as well as grounds for a further, more itensive search for a car.
However, all hope is not lost. While it may seem that the law is stacked against you and me, we still have a right to privacy, small though it has been made over time, and due process on our side.
First, it has been determined by the Supreme Court that a routine traffic stop in which an officer gives you a ticket for speeding, rather than a custodial arrest for a greater offense, the need for a search is nearly non-existent. To wit:
"The search at issue, authorized as it was by state law, nonetheless violates the Fourth Amendment...
First, the threat to officer safety from issuing a traffic citation is a good deal less than in the case of a custodial arrest. While concern for safety during a routine traffic stop may justify the 'minimal' additional intrusion of ordering a driver and passengers out of the car, it does not by itself justify the often considerably greater intrusion attending a full field-type search...
Second, the need to discover and preserve evidence does not exist in a traffic stop, for once Knowles was stopped for speeding and issued a citation, all evidence necessary to prosecute that offense had been obtained..."
Basically, if a police officer pulls you over for a specific violation and tells you that that is the violation he or she pulled you over for, and then writes you up for that violation, they have no right or need to search other parts of the vehicle to find materials to cite you for that offense; the officer has already admitted that the officer had all the evidence he or she needs to cite you for the offense. (Knowles v. Iowa; Knowles v. Iowa)
Moreover, you have the right to refuse to consent to a search if an officer asks for permission to search your vehicle. However, it can be tricky here. Denial to allow a search can be construed by police officers as probable cause for a legal offense, and can be used to gain authority to search your vehicle. The best thing to so is to very politely refuse to consent to the search of your vehicle. Do not raise your voice, speak with great respect, and do not get upset, angry, or at all emotional. If the officer then uses your denial as probable cause to search your vehicle, continue repeating that you did not consent to the search, and that it is a warrantless, consentless search of your private property with no reasonable belief of wrongdoing or probable cause of illegal activity. Continue to repeat this, and attempt to get the officer to acknowledge that he or she has conducted, and is continuing to conduct an unreasonable and illegal search of your vehicle. If anything illegal does turn up, ideally you will have the law on your side, as you had not consented nor allowed for any reasonable belief on the part of the officer.
But, if an officer tells you to "pop the trunk" or the hood, first ask if they are attempting to gain your consent to a search. If the officer replies that they are attempting to get consent to search, then do as above paragraph entails. If the officer replies that they are not attempting to gain consent to search your vehicle, ask them what their probable cause is for the search. Write down what the officer tells you the probable cause is (or remember what it is as best you can), and then do as they ask you. It is better to work with the police then against them in a system that gives them more power than you or I in most situations.
Just remember: Never willfully disobey a police officer. They are in charge of any situation, and if they tell you to do something, and you do not know whether you should or not, it is best to go along with the officer. Better to get ticketed for a minor offense than get arrested and jailed for a larger one.
And, these are just small pointers, written out of my notes. They are far from complete, and are not to be used as actual, legal advice. While what I have written in here is true, it is also to be used at your own discretion. Do not be surprised if an officer decides that they want to search you and everyone in your car, and has no real probable cause.
But, I hope that as many of you as possible take a vested interest in your civil rights and do your own research to see what specifically applies or does not apply based on your region.
(P.S., any of you in Minnesota have a huge State Supreme Court case on y
Additionally, I am not familiar with the import enthusiast community, while I am familiar with privacy case-law and legal precedence. That said, I am writing this given what I know, and if you know of specific laws that allow for police to search your import car (or any car) without probable cause, or if there is a law that significantly lowers the probable cause requirement, please let me know.
That said, it is important to know the wording of the Fourth Amendment and it's applications, as well as it's courtesies and precedents.
The Fourth Amendment reads that "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
The Fourth Amendment only protects you and me from unreasonable searches and seizures, and cannot protect you when you have been arrested, when the police are in hot pursuit of a crime, when the police are acting in an emergency situation, or when you have consented to the search. Additionally, if the police have a probable cause to search your vehicle, they need none of the above. And there are a surprising number of ways to give a police officer a probable cause - from running your mouth to playing unsavory music (in their eyes) to driving an apparently heavily modified import car.
Additionally, the Supreme Court has held that individuals have a diminished right to privacy in a vehicle because "its function is transportation and it seldom serves as one's residence or as the repository of personal effects. . . . It travels public thoroughfares where both its occupants and its contents are in plain view." ( Cardwell v. Lewis)
This allows that police have much greater power for warrentless searches of vehicles than residencies. However, an officer still must have probable cause to make a traffic stop, and must either choose a specific vehicle based on that probable cause (traffic stop), or stop every single vehicle in an area (checkpoints).
Further still, once an officer has made a traffic stop of a car, the officer may search the vehicle on "plain sight" (those items that are in view of anyone within a reasonable distance of the vehicle - anything that can be seen with the naked eye that does not have to be moved to be seen) at any time, regardless of the legality of the traffic stop. However, if the officer has a reasonable belief that you have a weapon or illegal paraphernalia, the officer may conduct a "Terry search" (pat-down) of your person and the vehicle's passenger area, but not the passngers. If such a search for weapons or illegal paraphernalia turns out to be wrong, but the officer comes into contact with other illegal materials, the search is considered valid and the materials found are determined to be legally obtained and usable against the owner, as well as grounds for a further, more itensive search for a car.
However, all hope is not lost. While it may seem that the law is stacked against you and me, we still have a right to privacy, small though it has been made over time, and due process on our side.
First, it has been determined by the Supreme Court that a routine traffic stop in which an officer gives you a ticket for speeding, rather than a custodial arrest for a greater offense, the need for a search is nearly non-existent. To wit:
"The search at issue, authorized as it was by state law, nonetheless violates the Fourth Amendment...
First, the threat to officer safety from issuing a traffic citation is a good deal less than in the case of a custodial arrest. While concern for safety during a routine traffic stop may justify the 'minimal' additional intrusion of ordering a driver and passengers out of the car, it does not by itself justify the often considerably greater intrusion attending a full field-type search...
Second, the need to discover and preserve evidence does not exist in a traffic stop, for once Knowles was stopped for speeding and issued a citation, all evidence necessary to prosecute that offense had been obtained..."
Basically, if a police officer pulls you over for a specific violation and tells you that that is the violation he or she pulled you over for, and then writes you up for that violation, they have no right or need to search other parts of the vehicle to find materials to cite you for that offense; the officer has already admitted that the officer had all the evidence he or she needs to cite you for the offense. (Knowles v. Iowa; Knowles v. Iowa)
Moreover, you have the right to refuse to consent to a search if an officer asks for permission to search your vehicle. However, it can be tricky here. Denial to allow a search can be construed by police officers as probable cause for a legal offense, and can be used to gain authority to search your vehicle. The best thing to so is to very politely refuse to consent to the search of your vehicle. Do not raise your voice, speak with great respect, and do not get upset, angry, or at all emotional. If the officer then uses your denial as probable cause to search your vehicle, continue repeating that you did not consent to the search, and that it is a warrantless, consentless search of your private property with no reasonable belief of wrongdoing or probable cause of illegal activity. Continue to repeat this, and attempt to get the officer to acknowledge that he or she has conducted, and is continuing to conduct an unreasonable and illegal search of your vehicle. If anything illegal does turn up, ideally you will have the law on your side, as you had not consented nor allowed for any reasonable belief on the part of the officer.
But, if an officer tells you to "pop the trunk" or the hood, first ask if they are attempting to gain your consent to a search. If the officer replies that they are attempting to get consent to search, then do as above paragraph entails. If the officer replies that they are not attempting to gain consent to search your vehicle, ask them what their probable cause is for the search. Write down what the officer tells you the probable cause is (or remember what it is as best you can), and then do as they ask you. It is better to work with the police then against them in a system that gives them more power than you or I in most situations.
Just remember: Never willfully disobey a police officer. They are in charge of any situation, and if they tell you to do something, and you do not know whether you should or not, it is best to go along with the officer. Better to get ticketed for a minor offense than get arrested and jailed for a larger one.
And, these are just small pointers, written out of my notes. They are far from complete, and are not to be used as actual, legal advice. While what I have written in here is true, it is also to be used at your own discretion. Do not be surprised if an officer decides that they want to search you and everyone in your car, and has no real probable cause.
But, I hope that as many of you as possible take a vested interest in your civil rights and do your own research to see what specifically applies or does not apply based on your region.
(P.S., any of you in Minnesota have a huge State Supreme Court case on y
