Travelling With A Gun In The Vehicle?

[Guest Abominable_Hillbilly]

I do understand Chimel and they are comparable. Chimel is the case

which established searches subsequent to an arrest. While Chimel did take place in a building, the court took notice of the "lunge area". The "lunge area" may be searched without a warrant subsequent to the arrest. As far as Moore goes, the facts as I read them pertain to his person and his vehicle. (which would be permitted under Chimel) I do not see a mention of a hotel room. http://www.law.cornell.edu/supct/cert/06-1082.html

If his hotel room was searched, he may have grounds for suppression.

Chimel is not "the case" that establishes rules for searches subsequent to arrest.

The officers never suggested that they feared for their safety from Moore. This was not a precautionary search of the passenger compartment of a vehicle for weapons.

Houses are not cars. Not in any way, shape or form. Jeez. The standard to enter the curtilage of a private home, and subsequently search it, is *dramatically* higher than that of searching a car.

Knowles is relevant to this case. Moore himself used this case as a precedent to have his conviction overturned in the lower courts. Reading into Knowles, it does not matter whether the search comes before or after the issuance of the citation. A traffic violation alone is reasonable suspicion for a seizure, but it is not probable cause to search.

Yes. He used Knowles in *his* argument. That state didn't use it in theirs. That was my point.

You don't know the difference between PC and RAS. For our purposes here, as inapplicable as your citation is, there is no effective difference. In Knowles, it was simply customary for Iowa police to search if they wanted during a lawful traffic stop. SCOTUS said "no, not without further suspicion". Now, in Iowa as elsewhere, they can just perform a custodial arrest and search you.

You need to read Terry v. Ohio. RAS is enough to search a person or a car. You trying to draw some distinction between PC and RAS in this situation makes obvious your ignorance.

A traffic violation is probable cause for seizure. It's actually PC to believe that a crime is being or has been committed. It goes beyond suspicion. It is almost never RAS, with very few exceptions such as suspicion of DUI, etc., and, even then some "crime" like crossing the center line will be involved for actual PC.

To correct my previous statement, what I meant to say was the court never considered whether a custodial arrest is permitted for traffic violations. It has all ready been upheld.

You need to read the case for yourself. You don't know what you're talking about.

http://www.supremecourtus.gov/opinions/07pdf/06-1082.pdf

I do understand what has happened. The court upheld evidence obtained from an illegal arrest, because the search was obtained incident to the illegal arrest. This ruling could encourage illegal arrests because evidence found subsequent to that arrest will not be suppressed even though the arrest violated state law. Hence, the Feds have given some leverage for questionable and possible unconstitutional practices by refusing to articulate that evidence found subsequent to an arrest must come from a lawful arrest.

In a federal court, this arrest was LAWFUL. The arrest was not "illegal" in a FEDERAL COURT. This means that state laws barring the police from arresting people for minor traffic offenses are now null, being as that SCOTUS is the highest court in the land. All a state attorney has to do is simply point to Moore and tell the defense attorney he'll appeal because, in federal court, the arrest was good. Or he'll just kick the case to a US attorney.

All of this is explained here.

http://www.law.cornell.edu/supct/cert/06-1082.html

That Cornell link is not bad, but it's really got you confused.

Chimel deals with houses and protective sweeps, officer safety, etc. While I agree that most protective searches and Terry stops are just a ruse by a lying cop looking for dope (or anything), it's still treated as an officer safety search under the law. Again, a car is NOT a private residence. The differences are huge in terms of the Fourth Amendment.

Knowles deals with a search after the issuance of a citation. Moore's only argument was that SCOTUS had previously held that searches related to traffic stops (not custodial ARRESTS!!) were held unconstitutional in the absence of some other cause or suspicion. He wished to parlay that into a web of suppression based on a resonableness standard.

Moore means exactly what I've said several times already: states laws barring arrest for minor traffic violations are now worthless.

Edited July 15, 2008 by Abominable_Hillbilly

[Guest eyebedam]

And Then

[Guest db99wj]

Holy superhijack batman

[Punisher84]

It's like watching a text version of Law and Order... DUNK DUNK!

[Guest CJRogue]

The hijack was welcome. And more to convince me to follow Mrs. Rogue's advice and pursue the permit.

Glad that while some seem to think I'm naive about my rights regarding search and seizure, there is plenty of room for otherwise intelligent folk to disagree and interpret those rights.

Regarding an earlier statement about a traffic stop being either an "arrest" or a "seizure," I maintain that it's merely a detainment unless a citation is issued in which case it becomes something else.

[Guest ProguninTN]

Regarding an earlier statement about a traffic stop being either an "arrest" or a "seizure," I maintain that it's merely a detainment unless a citation is issued in which case it becomes something else.

Precisely.

Abominable Hillbilly: I respectfully disagree. You are the ignorant one. Reasonable suspicion and Probable Cause are 2 different levels of proof, and Terry pertains to frisks. I suggest you learn the difference between a frisk and a search. I can and am willing to discuss these concepts and their applicability to TN as taught to me by TN lawyers. However, for the sake of civility and staying on topic, I will save that for another thread.

Edited July 16, 2008 by ProguninTN

[DaveTN]

The Supreme Court of Virginia suppressed the evidence against Moore. What's that tell you? The officers had no business arresting him.

It tells me that the Supreme Court of Virginia was wrong and the SCOTUS was needed to get them back on track.

I don’t think you understand the V<?xml:namespace prefix = st1 ns = "urn:schemas-microsoft-com:office:smarttags" /><st1:State>irginia</st1:State> law, and I’m not 100% sure that I do. But I’m relating it to <st1:State>Illinois</st1:State> law. On a criminal misdemeanor we could give the person an NTA (Notice to Appear without posting bond) or take them to jail; it was the Officers discretion. We didn’t do that on suspended or revoked, we took the driver to jail and towed his vehicle. From what I read <st1:State>Virginia</st1:State> allows their Officers to give them a summons on suspended; but does not require it. If the guy is by himself on the side of the road with a suspended license how will he leave if you let him go?

For federal Fourth Amendment purposes, a minor traffic ticket is an arrestable offense. Period. If an arrest was made for 36 in a 35, and it was appealed all the way to SCOTUS, they'd call it a good arrest. All a state has to do is appeal a suppression, and the evidence will eventually be admitted. It has to be. SCOTUS nullified state laws that protect citizens from capricious, obnoxious behavior by the police.

You are being silly now. That is not what the SCOTUS ruled and if it were the cops would not need probable cause for a vehicle search.

<st1:City></st1:City>

<st1:City>Moore</st1:City> was dirt bag drug dealer driving on a suspended driver’s license. The cops were paying attention and did a good job in putting him in jail. Our founding fathers never intended the fourth amendment to protect criminals from prosecution. They intended it to protect citizens from the kind of searches that were going on in <st1:country-region><ST1:pEngland</st1:country-region>. That is why the fourth contains the word “Unreasonableâ€. Nothing these Officers did was unreasonable and therefore <st1:City>Moore</st1:City> went where he belongs…. in prison.

[Guest ProguninTN]

IIf the guy is by himself on the side of the road with a suspended license how will he leave if you let him go?

Suspect parks car in lawful spot, leaves on foot. Suspect calls someone to scene, officers verify person is licensed driver, send them on their way. This is done here in TN sometimes.

[Guest Abominable_Hillbilly]

Regarding an earlier statement about a traffic stop being either an "arrest" or a "seizure," I maintain that it's merely a detainment unless a citation is issued in which case it becomes something else.

For Fourth Amendment purposes, being stopped for an alleged traffic violation is a seizure. Any time "a reasonable person wouldn't feel free to leave," based on a show of authority by the police, it is a seizure. Even in a level II Terry encounter. If you aren't free to leave, you're seized. Promise.

Abominable Hillbilly: I respectfully disagree. You are the ignorant one. Reasonable suspicion and Probable Cause are 2 different levels of proof, and Terry pertains to frisks. I suggest you learn the difference between a frisk and a search. I can and am willing to discuss these concepts and their applicability to TN as taught to me by TN lawyers. However, for the sake of civility and staying on topic, I will save that for another thread.

I wish one of our lawyer brethren would show up. You have no idea what you're talking about. Neither PC nor RAS are "proof". As a matter of fact, the case law is clear. The higher standard, PC, is "a standard well short of certainty" that crime is afoot. RAS is even less than that. Not much more than a hunch. And Terry pertains to much more than frisks. It pertains to seizures. Detention. Investigation. A person not free to leave during a Terry stop might not even be frisked. For the frisk to occur, the officer has to have specific facts to which he or she can point in articulating his or her belief as to what made them feel that their safety was threatened. Terry is predicated on the feel-good notion of officer safety, but it's often used to look for dope. Still, for the frisk to occur, an articulable threat has to exist.

A buddy of mine got Terry-stopped a few months ago because he was driving in an area where a burglary had been reported. Five KPD cruisers. They just looked at his ID, asked a few questions, and then let him go when they could plainly tell they were dealing with an honest citizen. They didn't frisk him or ask him to get out of the car, and this seizure would've fallen under Terry had evidence been seized and contested.

If you think you have something to teach me, let's hear it. I'm more than humble enough to learn.

It tells me that the Supreme Court of Virginia was wrong and the SCOTUS was needed to get them back on track.

So, the Supreme Court of Virginia is incapable of interpreting Virginia law? What if they determined that a gun ban in Richmond was wrong? Would they then be capable of adequately determining Virginia law? C'mon, man. Just because they say what you don't want to hear doesn't mean they're wrong.

And, besides, SCOTUS didn't even speak to Virginia law! They only made a determination about the federal Fourth Amendment.

I don’t think you understand the V<st1:state>irginia</st1:state> law, and I’m not 100% sure that I do. But I’m relating it to <st1:state>Illinois</st1:state> law. On a criminal misdemeanor we could give the person an NTA (Notice to Appear without posting bond) or take them to jail; it was the Officers discretion.

Virginia law states that misdemeanor crimes, the suspect will be issued a summons and "released forthwith". There are a few exceptions, but they relate to an officer's opinion of whether or not the person is a risk to public safety. Driving on a suspended license, on it's face, is not a public safety issue. It's merely an issue of revenue.

I'll see if I can find the statute.

We didn’t do that on suspended or revoked, we took the driver to jail and towed his vehicle. From what I read <st1:state>Virginia</st1:state> allows their Officers to give them a summons on suspended; but does not require it.

The Supreme Court of Virginia felt that the law required them to let him go, regardless of the law in Illinois. So did an intermediate appellate court of Virginia. Courts interpret the law, and the Virginia courts felt that this man had been wrongfully arrested.

If the guy is by himself on the side of the road with a suspended license how will he leave if you let him go?

Walk?

You are being silly now. That is not what the SCOTUS ruled and if it were the cops would not need probable cause for a vehicle search.

They don't need PC now for the search. All they need is PC to allege a traffic violation. Don't you see? SCOTUS said that all you need is PC to allege a violation of the law, and, for federal Fourth Amendment purposes, it's a good hook. After the arrest, you can perform your search incident to the lawful arrest for the alleged traffic violation. This is nothing but a way around the PC formerly needed to expand the scope of the stop and perform the search. State law be damned.

<st1:city></st1:city><st1:city></st1:city>Our founding fathers never intended the fourth amendment to protect criminals from prosecution.

You've said this before, and it makes my skin crawl. The Fourth Amendment protects us all. No one is guilty or a "criminal" until they're convicted. It amazes me how someone who once swore before God to defend the Constitution will so easily forsake it.

<st1:country-region><st1></st1>That is why the fourth contains the word “Unreasonable”.

The Fourth Amendment defines a "reasonable" interference of a citizen's liberty as being with "probable cause". It's only a few hundred years of perversion that have led us to capitulations such as "reasonable suspicion". Notice how the vague word "suspicion" appears nowhere in the Fourth Amendment? There's a reason for that.

Nothing these Officers did was unreasonable and therefore <st1:city>Moore</st1:city> went where he belongs…. in prison.

These officers violated Virginia law, but you're an ends-justify-the-means kinda guy. What are you gonna do when they make semi-automatic pistols go the way of cocaine?</st1:country-region>

"There is nothing new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all."

– Antonin Scalia, U.S. Supreme Court Justice, Arizona v. Hicks, 3/3/87

Scalia says things we like in Heller, but the above quote won't receive nearly such a nice reception.

.

Edited July 16, 2008 by Abominable_Hillbilly

[Guest ProguninTN]

You asked, so you shall receive.

First off, those are levels of proof. The levels are as follows:

1. Reasonable Suspicion (needed for seizures frisks under Terry)

2. Probable Cause (needed for full searches, search warrants, & arrests)

3. Preponderance of Evidence (used in civil cases)

4. Clear and Convincing Evidence

5. Beyond a Reasonable. (used in criminal cases)

As far as seizures go, I agree that Terry is pertinent. In fact, in TN, you are not required to be frisked to be considered seized. Whether one submits to it or not, a person is considered seized the moment the officer activates the lights/sirens of his/her vehicle. See State v. Randolph.

For a Terry stop, Reasonable suspicion is necessary. Reasonable suspicion is specific and articulable facts, which taken together from those facts, reasonably warrant an officer to believe that criminal activity is afoot. Terry v. Ohio.

Probable cause exists where the facts and circumstances withing [the arresting officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed by the person to be arrested. Brinegar v. United States.

What these mean are, based on individualized R/S, an officer may frisk and detain an individual. As you stated, 'officer safety' is often used to justify these checks. To conduct a full-search, (to go past outer clothing, or get into locked trunks and containers) and/or arrest the person, PC is necessary. The following can help establish PC: flight, furtive conduct, real evidence, admissions, false/implausible answers, presence at crime scene or high crime area, association with known criminals, post criminal conduct, facts arising during investigation/detention.

[Guest Abominable_Hillbilly]

You asked, so you shall receive.

First off, those are levels of proof. The levels are as follows:

1. Reasonable Suspicion (needed for seizures frisks under Terry)

2. Probable Cause (needed for full searches, search warrants, & arrests)

3. Preponderance of Evidence (used in civil cases)

4. Clear and Convincing Evidence

5. Beyond a Reasonable. (used in criminal cases)

As far as seizures go, I agree that Terry is pertinent. In fact, in TN, you are not required to be frisked to be considered seized. Whether one submits to it or not, a person is considered seized the moment the officer activates the lights/sirens of his/her vehicle. See State v. Randolph.

For a Terry stop, Reasonable suspicion is necessary. Reasonable suspicion is specific and articulable facts, which taken together from those facts, reasonably warrant an officer to believe that criminal activity is afoot. Terry v. Ohio.

Probable cause exists where the facts and circumstances withing [the arresting officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed by the person to be arrested. Brinegar v. United States.

What these mean are, based on individualized R/S, an officer may frisk and detain an individual. As you stated, 'officer safety' is often used to justify these checks. To conduct a full-search, (to go past outer clothing, or get into locked trunks and containers) and/or arrest the person, PC is necessary. The following can help establish PC: flight, furtive conduct, real evidence, admissions, false/implausible answers, presence at crime scene or high crime area, association with known criminals, post criminal conduct, facts arising during investigation/detention.

Dude. Tell me something I don't know.

Why have you posted this? I've stated several of these same things several times. Why would you think I didn't understand any of this? You're the one who has confused things in this thread. Not me.

And, once again, neither PC nor RAS are "proof". While certain facts that went to PC or RAS may enter into evidence while the state tries to prove its case, a police officer doesn't prove a person's guilt on the side of the highway or have to have proof-positive of that guilt. Both PC and RAS are well short of that.

Edited July 16, 2008 by Abominable_Hillbilly

[Guest ProguninTN]

I'm the one who is confused ? I think not.

:wall:You don't seem to understand: 1. RS & PC are 2 related but different things.

2. They ARE levels of proof. You might read about it here: http://en.wikipedia.org/wiki/Burden_of_proof

No the officer does not have to proof anything on a road side, but he/she does have to justify his/her actions in a hearing.

[Guest Abominable_Hillbilly]

The higher standard, PC, is "a standard well short of certainty" that crime is afoot. RAS is even less than that. Not much more than a hunch.

.

I'm the one who is confused ? I think not.

:wall:You don't seem to understand: 1. RS & PC are 2 related but different things.

2. They ARE levels of proof. You might read about it here: http://en.wikipedia.org/wiki/Burden_of_proof

No the officer does not have to proof anything on a road side, but he/she does have to justify his/her actions in a hearing.

Look at where I quote myself above. Notice how I refer to two different standards and then compare them? That means I understand very well that PC and RAS are related, yet different. Did you miss that by not reading my posts? I know VERY well that RAS and PC are different things. I know it so well, it makes me sick at my stomach. Have you ever read the lone dissent in Terry v. Ohio?

Imagine a prosecutor saying the following to a jury:

"Ladies and gentleman of the jury, Officer Smith saw Mr. Johnson in the vicinity of the homicide, wearing a blue shirt, and walking eastbound. Clearly, as this evidence demonstrates, Mr. Johnson is the culprit. You must convict."

RAS and PC are not PROOF. They are merely levels of suspicion that can or can't be supported by articulable facts that must meet a certain standard of reasonableness. These facts may ultimately be admitted into the record to move belief beyond a reasonable doubt, but the police don't need "proof" to interfere with your liberty. See Illinois v. Gates. It doesn't even have to be a fifty-fifty chance that you're guilty/not guilty.

You need to take wikipedia with a grain of salt. Most entries are freely editable by neophytes such as yourself. The fool who used the word "proof" in the "reasonable suspicion" entry duped you.

[Guest Old goat]

[Guest canynracer]

The dog must arrive in a reasonable amount of time. We were told 15 to 30 minutes was reasonable.

There is no set time limit. With several recent decisions, all you have to do is show that your behavior was "reasonable". With RAS, you might very well be able to wait for a dog from another county.

Just curious here, and I mean no disrepect...

why do you feel like you have to correct this? EMTRN is a LEO, and he stated what they were told by their superiors....do you expect him to disregard that?

[Guest Abominable_Hillbilly]

Just curious here, and I mean no disrepect...

why do you feel like you have to correct this? EMTRN is a LEO, and he stated what they were told by their superiors....do you expect him to disregard that?

I don't really have an expectation one way or the other about his behavior. Police often know very little about Fourth Amendment case law outside of Terry v. Ohio, and even then what constitutes sufficient reasonable, articulable suspicion is usually not clear to them. It also tends to change with each new case, especially when you have a judge who thinks the Fourth Amendment is just a bunch of silly words used to free the guilty on technicalities.

It wasn't my intent to put EMTRN in his place or otherwise "correct" him as such. I wasn't trying to show him what I knew compared to what he didn't know. His knowing the case law could be important for several reasons. Firstly, it could prevent him from making some sort of error that will have good evidence against a suspect being suppressed, or releasing a suspect when he didn't have to do so. While I hate our useless, failed drug war, worse I hate to see the wasted time and money on a bad hook. Secondly, knowing the law helps police officers avoid harassing citizens and engendering even more of the growing spite for them that I see everyday in reasonable, honest people just like me.

As to the "time limit" for waiting on a dog, he isn't entirely incorrect. It's a gray area in many cases. With reasonable suspicion, detaining a motorist for 15 or 20 minutes waiting for the dog has been found reasonable. Even longer in some rural areas of Tennessee.

[Guest ProguninTN]

Look at where I quote myself above. Notice how I refer to two different standards and then compare them? That means I understand very well that PC and RAS are related, yet different. Did you miss that by not reading my posts? I know VERY well that RAS and PC are different things. I know it so well, it makes me sick at my stomach. Have you ever read the lone dissent in Terry v. Ohio?

Imagine a prosecutor saying the following to a jury:

"Ladies and gentleman of the jury, Officer Smith saw Mr. Johnson in the vicinity of the homicide, wearing a blue shirt, and walking eastbound. Clearly, as this evidence demonstrates, Mr. Johnson is the culprit. You must convict."

RAS and PC are not PROOF. They are merely levels of suspicion that can or can't be supported by articulable facts that must meet a certain standard of reasonableness. These facts may ultimately be admitted into the record to move belief beyond a reasonable doubt, but the police don't need "proof" to interfere with your liberty. See Illinois v. Gates. It doesn't even have to be a fifty-fifty chance that you're guilty/not guilty.

You need to take wikipedia with a grain of salt. Most entries are freely editable by neophytes such as yourself. The fool who used the word "proof" in the "reasonable suspicion" entry duped you.

1. Glad we're on the same page. It appears I misinterpreted your previous posts.

2. That example is ludicrous. The burden at trial is "beyond a reasonable a doubt". However, as I stated before the burden of proof at a preliminary hearing is probable cause. (See Federal Rules of Criminal Procedure.)

3. Agreed, wikipedia isn't the most reliable source, but it's correct this time. I will cite others. http://www.cliffsnotes.com/WileyCDA/CliffsReviewTopic/The-Right-to-Privacy.topicArticleId-10065,articleId-9962.html

Cliff Notes is well-known for making study aids. Notice, how probable cause is the standard of proof for issuance of a search warrant. (Again, referring to Federal Rules of Criminal Procedure.)

http://www.ncdd.com/lop-inst.html

Again, "probable cause is the minimum measure of proof to obtain a search warrant." (Another reference to the Federal Rules of Criminal Procedure. Also, that organization is accredited by the ABA, so I think credibility goes up unlike with wikipedia.)

4. I am very familiar with Gates /totality of the circumstances. However, it is not controlling on TN State Courts. The TN Supreme Court ruled that Aguilar Spinelli should be used in TN in State v. Jacumin.

5. I do not purport be an expert, but a neophyte I am not.

[Guest Abominable_Hillbilly]

1. Glad we're on the same page. It appears I misinterpreted your previous posts.

2. That example is ludicrous. The burden at trial is "beyond a reasonable a doubt". However, as I stated before the burden of proof at a preliminary hearing is probable cause. (See Federal Rules of Criminal Procedure.)

3. Agreed, wikipedia isn't the most reliable source, but it's correct this time. I will cite others. http://www.cliffsnotes.com/WileyCDA/CliffsReviewTopic/The-Right-to-Privacy.topicArticleId-10065,articleId-9962.html

Cliff Notes is well-known for making study aids. Notice, how probable cause is the standard of proof for issuance of a search warrant. (Again, referring to Federal Rules of Criminal Procedure.)

http://www.ncdd.com/lop-inst.html

Again, "probable cause is the minimum measure of proof to obtain a search warrant." (Another reference to the Federal Rules of Criminal Procedure. Also, that organization is accredited by the ABA, so I think credibility goes up unlike with wikipedia.)

4. I am very familiar with Gates /totality of the circumstances. However, it is not controlling on TN State Courts. The TN Supreme Court ruled that Aguilar Spinelli should be used in TN in State v. Jacumin.

5. I do not purport be an expert, but a neophyte I am not.

I decided to leave this alone for a few days. I shouldn't have followed you down this rabbit hole.

1) We're not on the same page. You jumped in with Chimel and Knowles, and I still don't think you understand why they're inapplicable to my complaint about the implications of Moore.

2) Suddenly you move from the vehicle exception to a warrant, to actually testifying for a warrant. That's a big jump. I'll grant that you can find citations that use the word "proof". I'll even concede the point.

3) You quote the federal rules of criminal procedure, and then you give me #4.

4) Sure. The State of Tennessee uses Aguilar in determining probable cause to issue a warrant. I realize that your "TN lawyers" may not have pointed it out to you, but residents of Tennessee are also subject to Federal action. Gates?

Go back and read where you and I crossed paths. Perhaps you'll be as confounded as I am as to why we wound up here.