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Danz la Nuit
06-20-2011, 12:17 AM
B7IC0SmzRwM

~~edit~~ added video clip to top of OP

Was watching the most recent new COPS episode & during a traffic stop it was revealed that the driver had a suspended license for unpaid tickets, cop has driver step out, cuffs, search, finds needles.

It is revealed that the driver is the brother of the passenger.

The passenger owns the vehicle.

The cops pressure the driver for permission to search car.

Driver says no.

Passenger says yes.

Cops tell driver that if he doesn't consent to search they will impound his car...

Passenger is intimidated & whining @ his brother for not consenting.

Cops tell passenger (supposed owner of car) that it's up to the driver to consent or not.

It's hard to tell with the amount of editing taking place in the episode but eventually it cuts to the cop searching the car & finding heroin.

~~

This seems odd to me, shouldn't the owner of the vehicle have the final say on consent to search if they are present?

Regardless of ^^ question, does paraphernalia found on person give cause for non-consensual search?

Roddd
06-20-2011, 3:59 AM
You're spot-on about the editing. It's hard to say what happened. If the owner consents to the search, it's good to go. Without seeing the episode, it's hard to say what happened. If the driver appeared to be under the influence of a controlled substance, the officers have a right to search as part of their investigation. The moral of the story is to not let dirt bags drive your car.

Roddd
06-20-2011, 4:00 AM
Btw, COPS episodes are routinely shown to police academy classes and in-service training classes on what not to do.

smkqbns
06-20-2011, 9:51 PM
The question that needs to be answered is, "who has standing for the vehicle?" The answer, the owner.

Take this to a different scenario. A cop asks to search the common areas of a house. A guest of the home says, "no", the owner of the residence says, "go right ahead"...which person has the authority to authorize the search?

clpsac
06-21-2011, 12:34 AM
One of the officers mentioned that their search was limited to areas the driver could access, and they showed them searching the area around the driver's seat and the center console. I believe the drugs were found in the center console.

daves100
06-21-2011, 5:45 AM
Love watching cops, when they ask the driver if they can search and they tell him yes. then find a ton of drugs or a gun.

Tripper
06-21-2011, 5:52 AM
but...

the driver is the person who has full control of the car, and is responsible for everything in it whether he be the owner or not.
if owner/passenger is drunk, he by law cannot have full control of the car (else he would be dui).
only the legal driver can consent

INAL, the only advise here is if you are LEO, you might want to check with your legal counsel prior to making a search based on a passenger/owner consent, your search might very well get thrown out, I'd hate see that big drug bust go down the drain for lack of pc/consent

415dog!
06-21-2011, 7:18 AM
, impound under 14601, inventory search of vehicle.

non sequitur
06-21-2011, 7:28 AM
See page 7, Inventory Searches...

http://le.alcoda.org/publications/point_of_view/files/F09_VEHICLE_SEARCHES.pdf

Stay safe out there!

Tripper
06-21-2011, 7:45 AM
You can't impound for the sole purpose of an inventory search
And now, you can't even tow if there is someone available to take the car, or if it's not blocking a street or anything so if the person pulls over into a parking lot, unless you have something else, you can't tow it
I'm pretty sure you'll find that to be pretty accurate

guns4life
06-21-2011, 7:51 AM
post deleted...I didn't realize this was in the LEO section. Cursed "new post" button.

Tripper
06-21-2011, 7:58 AM
If your going to use the inventory method don't mix the words, it's either an inventory OR a search not an inventory search (which by using those words combined your stating it's a search no matter what you preface it with)

BigDogatPlay
06-21-2011, 12:57 PM
Btw, COPS episodes are routinely shown to police academy classes and in-service training classes on what not to do.

:iagree:

By the numbers....

Was watching the most recent new COPS episode & during a traffic stop it was revealed that the driver had a suspended license for unpaid tickets, cop has driver step out, cuffs, search, finds needles.

Search incident to arrest. They could also, without warrant or permission, search in the car within the area of the driver's immediate control.

It is revealed that the driver is the brother of the passenger.

The passenger owns the vehicle.

The cops pressure the driver for permission to search car.

Driver says no.

Passenger says yes.

While the driver has control of the car, up until the point he goes into custody anyway, if the passenger is indeed the RO and is both present and lucid he can absolutely give consent to the search.

Cops tell driver that if he doesn't consent to search they will impound his car...

Passenger is intimidated & whining @ his brother for not consenting.

Cops tell passenger (supposed owner of car) that it's up to the driver to consent or not.

Okay... so what state is this in? What is the controlling case law there? Far as I am concerned if I have the owner of the car present and he signs a consent to search then I don't really care what the driver says.

But that's just me.

SVT-40
06-21-2011, 1:13 PM
:iagree:

By the numbers....



Search incident to arrest. They could also, without warrant or permission, search in the car within the area of the driver's immediate control.



While the driver has control of the car, up until the point he goes into custody anyway, if the passenger is indeed the RO and is both present and lucid he can absolutely give consent to the search.



Okay... so what state is this in? What is the controlling case law there? Far as I am concerned if I have the owner of the car present and he signs a consent to search then I don't really care what the driver says.

But that's just me.

100% correct and to the point.

ke6guj
06-21-2011, 2:20 PM
While the driver has control of the car, up until the point he goes into custody anyway, if the passenger is indeed the RO and is both present and lucid he can absolutely give consent to the search.



Okay... so what state is this in? What is the controlling case law there? Far as I am concerned if I have the owner of the car present and he signs a consent to search then I don't really care what the driver says.

But that's just me.IIRC, in this case, the driver mentioned that the car was registered in his cousin's name. I think that he did also mention that the passenger owned it, but it wasn't in either occupants' name.

biochembruin
06-21-2011, 2:27 PM
Searches of the vehicle incident to arrest have changed. http://en.wikipedia.org/wiki/Arizona_v._Gant

You no longer get to search the whole vehicle just because the driver was arrested. You must have a reasonable belief there is evidence pertaining to the arrest in the vehicle. However, if the driver is arrested and you are going to impound the vehicle, you may still conduct a vehicle inventory.

ckim34
06-21-2011, 3:17 PM
, impound under 14601, inventory search of vehicle.

to be techincal it would be under 22651(p) but im just nit picking

Danz la Nuit
06-21-2011, 3:23 PM
Hmmm... So... it's likely a legality clusterf**k depending on what state it's in? lol

I don't recall what the location was on that episode.

Tripper
06-21-2011, 3:30 PM
what biochem said was what I was referring to i think.
I do still think that the driver has to consent, as the driver is the controller of the vehicle regardless of who owns it
on the other hand, I've seen it go both ways, thrown out, because the driver was not held responsible for passengers contents in the car, or something that a passenger claimed was theirs, and in other cases the driver being the sole responsible party of the vehicle contents. quite dynamic.

Tripper
06-21-2011, 3:31 PM
wait, can only LEO post?
same here, I usually use a phone and can't readily tell what sub-forum the posts are in.

my apologies, any mod can feel free to delete. (since i guess that be free to delete anyways, telling them they can do what they already know they can do makes it feel better)

CSACANNONEER
06-21-2011, 3:34 PM
It was on the other night but, I wasn't paying enough attention during that stop. I don't even remember what state it happened in. Could the state it occured in make a difference when it comes to probable cause and/or consent?

wait, can only LEO post?
same here, I usually use a phone and can't readily tell what sub-forum the posts are in.


Many of us calgunners use the "new posts" button and don't pay much attention to what sub forum we are posting in. This is not an LEO only forum so, your posts should be welcomed here.

ironcross
06-21-2011, 5:03 PM
It was on the other night but, I wasn't paying enough attention during that stop. I don't even remember what state it happened in. Could the state it occured in make a difference when it comes to probable cause and/or consent?



Many of us calgunners use the "new posts" button and don't pay much attention to what sub forum we are posting in. This is not an LEO only forum so, your posts should be welcomed here.

It was with the Pierce County Sheriff's Department in Washington state.

Synop;

Deputy makes a traffic stop on the vehicle for a burned out plate lamp. Deputy get all the info. Asked if this is your car. Driver states it belongs to his brother and pointed to the front passenger. Then the passenger states it's registered to their cousin but is in the process of getting the title in his name.

Deputy runs the driver and he comes back with a suspended license. Deputy requested the driver to come out and does a Terry frisk. Places him in cuffs etc. Deputy finds hypos in his pocket and did not find any narcotics on his person.

The Deputies cover unit arrives and takes the passenger out and frisks him. The Deputy asks the driver for consent to search. He says "Since its not my car I say no". Deputy then asks the passenger for consent and he says yes and tells him if your brother (Driver) doesn't give us consent and we have a K9 come out and find dope we're going to impound the vehicle.

The brothers begin to argue bla bla bla. Then the driver finally caved and granted the Deputies consent. Thereafter search of the vehicle they recovered black tar heroin from the center console.

10-16'd for Possession of narcs and driving on a suspended license.

Passenger was able to drive the car home.

That's what I remember from it.

Danz la Nuit
06-21-2011, 5:15 PM
the driver finally caved and granted the Deputies consent.

Hmm I don't remember that happening...

Danz la Nuit
06-21-2011, 5:34 PM
Here we go...

B7IC0SmzRwM

Tripper
06-21-2011, 5:50 PM
I still think the driver has control and a passenger, owner or not, has no ability to consent.
my opinion, and i have no readily available legal reference

ke6guj
06-21-2011, 6:09 PM
Hmm I don't remember that happening...

me neither. I think they used the "immediate vicinity" exception to search.

BigDogatPlay
06-21-2011, 6:19 PM
Searches of the vehicle incident to arrest have changed. http://en.wikipedia.org/wiki/Arizona_v._Gant

You no longer get to search the whole vehicle just because the driver was arrested. You must have a reasonable belief there is evidence pertaining to the arrest in the vehicle. However, if the driver is arrested and you are going to impound the vehicle, you may still conduct a vehicle inventory.

You still get the driver's zone of immediate control, no? Just not the whole interior of the car, unless of course you find something further within the zone of control that opens the rest of the vehicle to scrutiny. At least that's how I've read.

Very good discussion this one. And seeing the video seems to somewhat muddy the water.... who owns the car, really? If it's the (not present on scene) cousin, then the passenger has no standing to consent. That definitely changes the dynamic.

CSACANNONEER
06-21-2011, 6:50 PM
It was with the Pierce County Sheriff's Department in Washington state.


Thanks.

Does anyone know if the search laws vary from state to state? I believe they do.

yzernie
06-21-2011, 8:10 PM
I still think the driver has control and a passenger, owner or not, has no ability to consent.
Flawed logic. The owner trumps the driver.

Besides, the incident depicted in the video happened in a state other than California. The controlling case law in that state may be different than here in Cali.

ironcross
06-21-2011, 9:25 PM
Hmm I don't remember that happening...

me neither. I think they used the "immediate vicinity" exception to search.

Around 18:45 Via Hulu: http://www.hulu.com/watch/250700/cops-coast-to-coast-finale

He says "WHATEVER BRO" Then it cuts to them searching.

SVT-40
06-21-2011, 10:10 PM
Searches of the vehicle incident to arrest have changed. http://en.wikipedia.org/wiki/Arizona_v._Gant

You no longer get to search the whole vehicle just because the driver was arrested. You must have a reasonable belief there is evidence pertaining to the arrest in the vehicle. However, if the driver is arrested and you are going to impound the vehicle, you may still conduct a vehicle inventory.

Okay the driver was legally arrested for driving on a suspended license. He was handcuffed and searched. The officers found needles on him during a search after arrest.

If it was in California the needles are contraband under 11364 H&S.

Since the driver had possession of the needles it would be reasonable for officers to believe there may be more paraphernalia or narcotics in the vehicle. This would allow them to search the vehicle and not be in violation of Az Vs Grant.

So it would not matter if either the driver or passenger / owner did not consent to a search.

tyrist
06-22-2011, 8:48 PM
No permission would have even been necessary in the state of California.

Samuelx
06-22-2011, 10:02 PM
No permission would have even been necessary in the state of California.

yup

Danz la Nuit
06-23-2011, 11:48 AM
Okay, if we have established that (in CA) finding the needles on the driver allows for a search of the entire vehicle; how would this have played out if the driver had NOT had a suspended license, the officer would not be able to force a physical search of the driver if the driver refused consent, correct?

SVT-40
06-23-2011, 1:22 PM
Okay, if we have established that (in CA) finding the needles on the driver allows for a search of the entire vehicle; how would this have played out if the driver had NOT had a suspended license, the officer would not be able to force a physical search of the driver if the driver refused consent, correct?

Ya see, the thing is there are just to many possibilities to really form a reliable conclusion when you start taking away or adding things to a real situation.

Actually being there and seeing ,hearing, smelling or feeling everything like those officers did would play a roll in any decision.

Making up situations cause people to "assume" what would happen. So any answers would only be assumptions not real answers based on real facts.

ironcross
06-23-2011, 2:21 PM
Okay, if we have established that (in CA) finding the needles on the driver allows for a search of the entire vehicle; how would this have played out if the driver had NOT had a suspended license, the officer would not be able to force a physical search of the driver if the driver refused consent, correct?

While I was the passenger on a TS for the same PC. The Deputy just cited a fix it ticket.

On another stop. We were stopped by USBP on a public road. They said we can't be this close to the border... They searched the truck as best they could from the outside and ran both of our info. Had 7 trucks rolling code and could hear Foxtrot overhead. Must of been a boring night for them :p.

Ya see, the thing is there are just to many possibilities to really form a reliable conclusion when you start taking away or adding things to a real situation.

Actually being there and seeing ,hearing, smelling or feeling everything like those officers did would play a roll in any decision.

Making up situations cause people to "assume" what would happen. So any answers would only be assumptions not real answers based on real facts.

Since they edit everything makes it so dynamic. One of the Deputies stated one of them were hiding something/sitting on something.

Tripper
06-23-2011, 2:37 PM
I've asked a number of LEO's in recent days, and they are all very adamant that they can get consent from either the driver or the owner.

I disagree still.

I would liken it to apartments, even if the complex is owned by me, i cannot give consent to search any of the apartments, they are individually controlled by the renter, similar to a vehicle being under the control of the driver.

biochembruin
06-23-2011, 7:07 PM
I've asked a number of LEO's in recent days, and they are all very adamant that they can get consent from either the driver or the owner.

I disagree still.

I would liken it to apartments, even if the complex is owned by me, i cannot give consent to search any of the apartments, they are individually controlled by the renter, similar to a vehicle being under the control of the driver.

It's really nothing like apartments, as courts have held that vehicles have a much lower expectation of privacy than the home, in part because of their mobile nature.

Samuelx
06-23-2011, 8:19 PM
Fire is hot, whether you believe it or not. :rolleyes:

jeep7081
06-23-2011, 10:32 PM
The question that needs to be answered is, "who has standing for the vehicle?" The answer, the owner.

Take this to a different scenario. A cop asks to search the common areas of a house. A guest of the home says, "no", the owner of the residence says, "go right ahead"...which person has the authority to authorize the search?

Trick question. Does the tenant have access to the whole house? If so, tenant or owner then. If not, only owner.

Furthermore, the Officer couldn't search the tenants room without the tenants permission regardless if the owner ok'd it or not. The tenant has reasonable expectation of privacy.


It's really nothing like apartments, as courts have held that vehicles have a much lower expectation of privacy than the home, in part because of their mobile nature.

In most states, not all.

yzernie
06-24-2011, 4:51 AM
I've asked a number of LEO's in recent days, and they are all very adamant that they can get consent from either the driver or the owner.

I disagree still.

I would liken it to apartments, even if the complex is owned by me, i cannot give consent to search any of the apartments, they are individually controlled by the renter, similar to a vehicle being under the control of the driver.
A residence is very different from a vehicle and case law is very different as well.

Tripper
06-24-2011, 7:39 AM
So, take it another level,
Husband/wife
He says no, she says yes, he is driving. Consent, when given, can be revoked at any times, now I bet it matters.
I say you can't have it both ways
Do you really want that huge drug bust thrown out cuz u didn't get the 'right' consent
Everybody in the car denies it's theirs, you arrest everyone, without a plea u got nothing

MaHoTex
06-24-2011, 8:03 AM
Fire is hot, whether you believe it or not. :rolleyes:

Well now, that depends upon your definition of hot. :D

biochembruin
06-24-2011, 9:16 AM
So, take it another level,
Husband/wife
He says no, she says yes, he is driving. Consent, when given, can be revoked at any times, now I bet it matters.
I say you can't have it both ways
Do you really want that huge drug bust thrown out cuz u didn't get the 'right' consent
Everybody in the car denies it's theirs, you arrest everyone, without a plea u got nothing

That would still be different, as the car might be community property. Both parties would have standing.

Tripper
06-24-2011, 9:22 AM
Who gets the ticket if passenger has no seat belt on, or passenger throws a bottle out the window

SVT-40
06-24-2011, 11:49 AM
The passenger would be cited in both cases. The driver can also be cited in some cases where the passenger is not wearing his or her seat belt as well.