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ENCOUNTERS WITH POLICE
THE UNITED STATES SUPREME COURT, as well as all the state courts, have held that the reasonableness and hence the legality of an encounter between a police officer and a citizen must be judged by examining all the circumstances surrounding the encounter. Generally speaking, all encounters with police officers can be placed in one of three categories: (l) contact, (2) detention, or (3) arrest. Your legal rights during an encounter with a police officer will depend on how the encounter is categorized by a court.
Contact
The first level of many encounters with police is known as a "contact." A contact occurs when a police officer attempts to engage you in conversation. For example, if an officer asks you for directions, or asks you if you saw something or someone, he is merely "contacting" you. The essential characteristic of a contact is that you remain free to leave at all times. Because you are always free to leave, a contact is not considered a seizure. Since it is not a seizure, and obviously is not a search, the Fourth Amendment does not apply; therefore a police officer is free to contact a person for any reason. He does not need even a reasonable suspicion that the person is engaged in criminal activity.
During a contact with a police officer, you are free to behave as you would with any other citizen. You need not identify yourself. You may answer the officer\'s questions or ignore him and walk away. The United States Supreme Court has made this very clear, stating:
Law-enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in some other public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering as evidence in a criminal prosecution his voluntary answers to such questions. . . . The person approached, however, need not answer any question put to him; indeed, he may decline to listen to the into a seizure within the meaning of the Fourth Amendment. However, officers requesting a suspect to accompany them to another location should document that the citizen had a genuine choice and voluntarily agreed to the movement.
(6) Demeanor and Appearance of Officer
An officer\'s use of coercive or intimidating language or tone of voice may be interpreted by a reasonable person as compelling compliance. A uniformed officer repeatedly flashing a badge is intimidating conduct. Requests for a consent to search should be conveyed in a manner that makes it clear that the citizen has a choice and that compliance is not required or compelled. Advising suspects that they are suspected of transporting drugs is another factor courts assess in determining the coercive effect of police conduct. Since uncommunicated suspicions generally have no bearing on whether a particular encounter is consensual or a seizure, officers should consider delaying or avoiding the expression of such suspicions until a seizure is justified.
(7) Retention of Citizen\'s Personal Property
Although officers may request to examine a person\'s identification or tickets and ask questions about any discrepancies, such items should be promptly returned. The prolonged detention of personal items can transform a consensual contact into a detention.
There are strict rules governing the circumstances under which a police officer can legally detain a person. The courts have universally held that, with a few clear exceptions, an officer can detain a person only if he has a "reasonable suspicion" that the person is involved in criminal activity.
The legal definition of "reasonable suspicion" is ever-changing. The important thing to understand is that the reasonable suspicion standard is lower than what\'s termed "probable cause." In other words, it is quite possible that a police officer will have reasonable suspicion (sufficient to detain a person), but still not have probable cause to believe a person is engaging in criminal activity (needed to arrest the person). In fact, an officer\'s sole purpose in detaining a person is often to try to get enough additional evidence to establish the probable cause required to arrest the person.
Reasonable suspicion exists if an officer can point to some specific facts that, taken together, made it reasonable for him, with all his training and experience, to suspect that the person he detained was involved in some illegal activity. In other words, an officer\'s mere "hunch" is nor sufficient to detain a person. Rather, the officer must be able to articulate the reasons underlying his suspicion, and the court must agree that his suspicion was reasonable.
The Supreme Court has explained that the purpose of a detention must be limited to conducting an investigation to find out if there is probable cause to arrest the person detained. Therefore, an officer is allowed to detain a person only for the length of time reasonably needed to confirm or dispel his suspicion. If a court finds that an officer detained a person for an unduly long period of time, the court will apply the exclusionary rule to any evidence that the officer found after he exceeded the reasonable time needed to conduct his investigation.
In almost all cases, it is a series of facts which, when viewed in combination, add up to a reasonable suspicion that a person is engaged in a marijuana crime. For example, in almost every state, smoking a hand-rolled cigarette is not, by itself, sufficient reason for an officer\'s detention of the smoker. However, when the officer states that he also smelled the odor of burning marijuana, or that the suspect seemed extremely nervous at the officer\'s approach, the totality of the factors may give rise to a reasonable suspicion of criminal activity (and maybe even probable cause sufficient to arrest), thereby allowing the officer to detain the person to investigate further. Similarly, most courts hold that the fact that a person runs when he sees the police is not, by itself, grounds to detain that person. However, when evasive conduct is coupled with other factors such as a "high-crime area" or an officer\'s observation of other suspicious actions, many courts will permit the officer to detain the person. Note, however, that if flight occurs after an officer has formed a reasonable suspicion to detain a person and has ordered the person to stop, the attempt to escape automatically transforms the reasonable suspicion into probable cause, and hence the officer can arrest the person.
Detaining Your Belongings
Not only can police detain you if they have a reasonable suspicion you are violating a marijuana law, they can also detain your belongings if they have a reasonable suspicion that they contain marijuana. Again, a common example occurs in airports when police stop and detain a person because they believe that his luggage may contain marijuana. In such a situation, the police can detain the luggage only for the reasonable time necessary to conduct their investigation. They cannot open the luggage without a search warrant or without the person\'s consent; therefore they must either quickly obtain a search warrant or release the luggage back to the person. Often in such a situation they will have a marijuana-detecting dog sniff the luggage, and return it to the owner if no drug is detected. If marijuana is detected. By the dog, then the officer will arrest the person immediately and obtain a search warrant to open the luggage.
In one recent federal case in Colorado, the security police at Lowery Air Force Base received a telephone call in which the caller said he smelled marijuana while he was working in a particular building. An officer was dispatched to investigate. Inside the building, the officer smelled no marijuana and observed nothing out of the ordinary. The only people inside the building were two janitors.
Despite the lack of any reasonable suspicion that the men where involved in criminal activity, the officer told both men to "stand by" while him radioed for additional help. Three additional security police arrived with a narcotics dog. The additional officers smelled nothing, but ordered the dog to begin searching the area. The dog alerted to a coat lying inside an office. The officers asked the janitors if the coat belonged to one of them, and one janitor answered affirmatively. According to the janitor, the officer then ordered him to pull out whatever was inside the jacket, whereupon the janitor removed a small bag of marijuana from the coat.
The court excluded the marijuana after determining that the janitors had been unlawfully detained when the first officer told them to "stand by." The order to stand by was a detention because the men were not free to leave. The detention was unlawful because at the time the janitors were told to stand by there was absolutely no indication of wrongdoing. Moreover, when the first officer detained the men, he effectively also detained their property (the coat.) Since the janitor was not free to leave, he was obviously unable to remove his coat from the office. Since at the time the coat was effectively detained (which was prior to the dog sniff), there was no reason to suspect that it contained marijuana, the detention of the coat was also declared unlawful. The court held, therefore, that almost every action by the officer was unconstitutional. The proper remedy was to declare the unlawfully seized marijuana inadmissible evidence which meant that the case against the man had to be dismissed for lack of evidence.
In an aside, the court also noted that even had the detention of the coat been lawful, the order to remove the marijuana from inside the coat constituted an unlawful warrant less search. When a dog alerts to luggage or other property that might conceal marijuana, the constitutional procedure is for the officers to obtain a search warrant. (US.v. Lumba [D.Colo. 1993] 825 F.Supp. 263.)
Demanding to See Your Identification
If an officer legally detains you, most courts now permit the officer to demand to see proof of your identification. In such situations, it\'s usually best to politely provide the officer with your ID. Nothing is gained by attempting to conceal your identification once you have been legally detained. Similarly, it is not prudent to give a police officer a fake name once you have been lawfully detained or arrested. When a false name is given, the police almost always quickly discover that the person is lying and the person can then be charged with the additional crime of giving false information to a police officer. Furthermore, the person\'s evasiveness can later be used against him to show his consciousness of guilt. (See Chapter 1 on the "knowledge" element that must be proven to convict a person of possessing marijuana.) Remember, however, during a contact you do not have o identify yourself.
Frisks or Pat-Searches
fa police officer legally detains a person, the officer may have a right to "frisk" >r "pat-search" the person. (The two terms are synonymous.) A frisk is intended to protect the officer or the public, so an officer can conduct a frisk or pat-search only if he reasonably fears for his safety or the safety of others.
A frisk is therefore a limited search for the sole purpose of detecting a concealed weapon. When conducting a frisk, an officer can pat or feel only the midside of a person\'s clothing. The officer can reach inside a pocket only if he detects a hard object that he reasonably believes could be used as a weapon. The courts of every state have held that practically any hard object justifies the officer in reaching inside the person\'s pocket to find out if the object is really a weapon.
Courts will uphold a police officer\'s frisk whenever the officer can state specific facts that led him to reasonably believe the person was a threat and might possess a weapon. The Supreme Court has instructed that courts should find an officer\'s frisk illegal if the officer was really looking for drugs rather than weapons. Similarly, courts should find a frisk illegal if an officer went beyond the permissible scope of a frisk and removed soft objects or searched inside pockets without first detecting a hard object from the outside.
It is important to understand that if an officer, while conducting a frisk, feels a hard object that he believes to be a weapon, he can remove that object. If he happens to also feel something else in that pocket (such as a joint or baggie of marijuana), he can "accidentally" pull that item out as well. In fact, such "mistakes" are quite common, and the resulting incriminating evidence is often admissible.
For example, in one case, an officer in the Los Angeles Police Department stopped Larry Atmore because Larry allegedly met the description of a murder suspect. When the officer pat-searched Larry, he felt a round cylindrical object in Larry\' s jacket pocket. The officer had information that the murder suspect used a shotgun in the murder, and suspected that the cylindrical object was a shotgun shell.
For that reason, the officer reached inside Larry’s jacket pocket and removed the object, which, in fact, turned out to be a lipstick case. However, as the officer removed the lipstick case,\' he also removed a joint that was in the same pocket. Although Larry was cleared as the murder suspect, he was subsequently convicted of possessing marijuana.
The court held that the officer\'s removal of the joint was legal because it occurred innocently and in conjunction with his removal of what he believed was a shotgun shell. The court stated, "There is no compelling evidence that [the officer] consciously seized the cigarette. A legitimate implication from the record is that his hand emerged with more than he intended to remove from the pocket.
For example, in one case, an officer in the Los Angeles Police Department stopped Larry Atmore because Larry allegedly met the description of a murder suspect. When the officer pat-searched Larry, he felt a round cylindrical object in Larry\'s jacket pocket. The officer had information that the murder suspect used a shotgun in the murder, and suspected that the cylindrical object was a shotgun shell.
For that reason, the officer reached inside Larry’s jacket pocket and removed the object, which, in fact, turned out to be a lipstick case. However, as the officer removed the lipstick case, he also removed a joint that was in the same pocket. Although Larry was cleared as the murder suspect, he was subsequently convicted of possessing marijuana.
The court held that the officer\'s removal of the joint was legal because it occurred innocently and in conjunction with his removal of what he believed was a shotgun shell. The court stated, "There is no compelling evidence that [the officer] consciously seized the cigarette. A legitimate implication from the record is that his hand emerged with more than he intended to remove from the pocket.
We have all done the same thing when fumbling for keys or coins. There is nothing sinister about it. Once the cigarette was in plain sight, the officer did not have to ignore it."
The court found that the shotgun shell that the officer suspected to be in Larry\'s pocket would have legitimately been considered a weapon. The court reasoned that if the object had been a shotgun shell as the officer believed, Larry could have used it as a miniature bomb! In the court\'s words, "the officer could reasonably believe that any sharp object could be used as a detonator. He had not eliminated the possibility that [Larry] might be the person who was sought for murder and who, if caught, could face the death penalty. If he was the murder suspect, he might want to explode the shell even in a way that might entail considerable personal risk to him, so long as he might escape in the ensuing confusion." Clearly, the lesson to be learned from Larry Atmore\'s misfortune is that it is not prudent to carry marijuana in the same pocket with a weapon or even a hard container.
Additionally, it sometimes happens that an officer who legally conducts a pat-search for weapons feels an object which, based on his experience and training, he believes to be marijuana or some other illegal drug. For example, in one case, Lee was legally stopped by an officer who suspected that he might be carrying a concealed weapon. As the officer pat-searched Lee, he felt a soft object that made a rustling and crumpling sound when pressed. Although the officer knew it was not a weapon, he suspected it was a baggie of marijuana. The officer reached into Lee\'s pocket and removed a baggie containing "green vegetable matter." The lab test later confirmed that the substance was marijuana, and Lee was charged with possession.
Lee argued that the officer\'s removal of the baggie was illegal because the officer knew it was not a weapon before he reached inside Lee\'s pocket. Therefore, Lee argued, the officer had exceeded the permissible scope of a legal pat-search for weapons and the illegally seized marijuana should therefore be excluded from evidence.
At the hearing on this issue, the officer testified that he was a 19-year veteran of the police force, and had received approximately 40 hours of education on identifying drugs, including marijuana. The officer stated that during his 19 years, he had arrested over 500 people possessing marijuana. The officer concluded that given all his training and experience, he was able to deduce, just by feeling the outside of Lee\'s pocket, that the object inside was a baggie of marijuana.
Based on such testimony, the prosecutor argued that the officer\'s pat-search, while initially conducted to detect weapons, unexpectedly turned up probable cause that Lee was in possession of marijuana. This probable cause permitted the officer to reach inside Lee\'s pocket and seize the marijuana even though he knew it was not a weapon. The court agreed with the prosecutor\'s argument. Therefore, the officer\'s search of Lee\'s pocket was deemed legal on the basis that the pat-search unexpectedly produced probable cause of marijuana possession.
The United States Supreme Court has been constantly expanding the permissible scope of an officer\'s search for weapons after detaining a suspect. At present, the Court permits police officers not only to pat-search the outside of a suspect\'s clothing, but also to search the immediate area surrounding the suspect. As will be explained in Chapter 6, an officer who legally stops a person\'s vehicle, and reasonably believes that an occupant is dangerous, can search the car\'s passenger compartment for weapons. Any marijuana they come across during the search can also be seized!
Legal Detentions Without Reasonable Suspicion
As explained above, the general rule is that an officer can only detain a person if the officer has a reasonable suspicion that the person is (or was) involved in criminal activity. There are, however, a few very important exceptions to this rule which it pays to know about. If any one of these exceptions applies, an officer can automatically (without reasonable suspicion) detain a person.
You may be automatically subjected to detention by a police officer if you fall into any of the following categories:
(1) you fit a "drug-courier profile,"
(2) you are stopped at a roadblock (discussed in Chapter 6),
(3) you are crossing a border, or are subject to a border inspection (discussed in Chapter 5), or
(4) you look young, and an officer reasonably believes you are a juvenile who is skipping school or violating a curfew.
The Drug-Courier Profile
In the early 1970\'s, the Drug Enforcement Administration developed what is referred to as the "drug-courier profile." This set of characteristics was derived from statistical information gained from numerous arrests of peoples attempting to transport illegal drugs. The courts have held that, for all practical purposes, resemblance to the DEA\'s drug courier profile is sufficient in and of itself to constitute reasonable suspicion of criminal activity, thereby providing grounds for an experienced officer to legally detain a person. (Of course, the courts have been very careful about the phrasing of this rule, noting that each case must be judged on its own merits.) In other words, if your appearance and behavior fit the drug-courier profile an officer has a free shot at legally detaining you.
When law enforcement agents spot a person meeting the profile characteristics, they will usually approach the person and try to engage him or her in conversation. As mentioned earlier, the courts have held that police can "contact" a person in public anytime and for any reason. During such an encounter, the agents are trained to ask a few questions without displaying force or otherwise implying that the person is not free to terminate the encounter and walk away.
A contact of this kind will escalate into a detention if the person fitting the profile does anything that the officer thinks is suspicious. In many cases, the officer contacting the person will ask if he can look in the person\'s luggage, hoping the person will foolishly consent to such a search.
Obviously, it is important for anyone desiring full protection against detentions by law-enforcement personnel to avoid resemblance to the profile. However the DBA has attempted to keep secret specifics of the profile. Fortunately, numerous cases have been litigated, and from the resulting court opinions one can deduce just what it is that the agents look for.
A careful analysis of the cases reveals that there are seven primary characteristics to the drug-carrier profile, and four secondary characteristics. The seven primary characteristics are:
(1) arrival from or departure to an identifiable source city for drugs
(2) carrying little or no luggage, or carrying several empty suitcases
(3) having an unusual itinerary, such as a quick return after a lengthy airplane trip
(4) use of an alias
(5) carrying unusually large amounts of currency (thousands of dollars)
(6) purchasing airline tickets with a large amount of small bills
(7) unusual nervousness beyond that ordinarily exhibited by passengers
The four secondary characteristics of the drug-carrier profile are:
(1) using public transportation, particularly taxicabs, in departing from the airport
(2) immediately making a telephone call after deplaning
(3) leaving a false call-back telephone number with the airline
(4) excessively frequent travel to drug source and distribution cities
The profile often varies. In fact, one court in New York remarked that "the profile has a chameleon-like quality; it seems to change itself to fit the facts of each case." This same court noted, "[o]new agent candidly admitted that \'the profile in a particular case consists of anything that arouses his suspicions.\'"
To make matters even more complicated, the profile changes depending on the airport or the area of the country. The specific profiles for the following airports and locations are derived from court opinions.
La Guardia Airport, New York City
(1) carrying little baggage
(2) nervousness
(3) checking to see if being followed
(4) attempting to leave the airport immediately
(5) unusual dress
(6) no tags on luggage
(7) attempts by individuals to conceal that they\'re traveling together
New Orleans
(1) nervousness
(2) little or no luggage
(3) large amounts of cash in small bills
(4) unusual itinerary
(5) arriving from drug-source city
(6) paying for ticket in small bills
(7) buying only a one-way ticket
(8) using an alias
(9) using a false telephone number on flight reservation
(10) placing a call immediately on arrival
Detroit Airport
(1) buying ticket with small bills
(2) travel to or from drug-source cities in short time period
(3) empty suitcases or luggage
(4) nervousness
(5) use of alias
Cleveland Airport
(1) purchase of round-trip ticket to and from drug-distribution city, with short stay between flights
(2) purchase of tickets with cash
(3) checking no luggage or empty bags
(4) use of alias
(5) suspicious or nervous behavior
While drug-courier profiles are used for justifying detentions at or near airports, in one recent case, a profile of this kind was used to justify the stopping of a vehicle and the subsequent arrest of its driver for transporting marijuana. In warrant or probable cause to believe that the person has committed a crime. (If a person is inside his home, probable cause is not enough; the officer must have an arrest warrant. If the person is inside someone else\'s home, the officer must have a search warrant for the host\'s home.) Probable cause requires that the facts of the situation would lead a reasonable person to believe that the suspect was guilty of the crime for which he was arrested. Or, in the words of the United States Supreme Court, "probable cause exists where the facts and circumstances within [the police 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." As you can see, an officer\'s mere suspicion that you are breaking the law, even if reasonable, is insufficient to arrest you.
The courts like to say that "probable cause is a common sense, practical question" based on the "factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." The test to determine whether probable cause exists is a gestalt one, based on the totality of the circumstances. "In dealing with probable cause ... we deal with probabilities ... Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as fact finders are permitted to do the same and so are law enforcement officials." (Illinois v. Gates [1983] 462 US. 213.)
The gestalt nature of the probable cause test often places a great deal of weight on the police officer\'s claimed "experience and training." This is particularly true in marijuana cases, where an officer must sometimes act on his sense of smell or his quick view of some "green vegetable matter" (as they often state in their police reports). For example, if an officer sees some seeds which he thinks might be marijuana seeds, he will seldom have probable cause to arrest the person without some corroborating factors detected by his senses of sight or smell and all brought together by his training and experience that these factors combine to make it probable that the seeds are illegal marijuana seeds. (How he could possibly know they are viable is a question to be pursued on cross-examination, perhaps with the aid of a few sterilized Cannabis seeds from some bird food.)
Whether or not an officer has probable cause to arrest a person seen in possession of a hand-rolled cigarette also turns on what additional facts or circumstances indicate that it is a joint as opposed to a tobacco cigarette. In one California case decided in 1972, the court held that an officer\'s viewing of a person with a hand-rolled cigarette did not, by itself, constitute probable cause to arrest the person. The court, however, explained that there were no other factors that the cigarette contained marijuana as opposed to tobacco. The court said that its decision would have been different if . . . there was evidence of other circumstances such as attempted concealment of the item, the defendant\'s distinctive manner of smoking it, the odor of burned marijuana, the defendant\'s evasiveness or abnormal physical condition, an admission by the defendant, or the arresting officer\'s expertise on the subject. (Thomas v. Superior Court [1972] 22 CalApp. 3d
972)
When a Police Officer\'s Search or Seizure Is Legal Even Though He Doesn\'t Have a Warrant
As a general rule, a police officer can legally conduct a warrant less search or seizure under one or more of the following circumstances:
(1) The search was conducted after a peron was lawfully arrested. (See Chapter 9.)
(2) An automobile was searched, and the officer had probable cause to believe that the vehicle contained contraband. (See Chapter 6.)
(3) The person voluntarily consented to the search.
(4) The item seized was in plain view of the officer, and its illegal nature was immediately apparent.
(5) The search was conducted at a United States border.
(6) An immediate search was necessary to preserve evidence.
(7) The person or property searched belonged to a student at a public school, and the search was performed by a school official.
As noted above, the first two exceptions are discussed in later chapters. This chapter will examine the remaining five exceptions.
Consenting to a Search
The law concerning consent is widely misunderstood among the general public, and this misunderstanding can have dire consequences. As a general rule if a person consents to a warrant less search, the search automatically becomes reasonable and therefore legal. Consequently, whatever an officer finds during such a search can be used to convict the person. Simply put, if a person consents to a search, he has waived the primary protection offered by the Fourth Amendment!
Don\'t expect a police officer to tell you about your right not to consent. Although your consent must be voluntary in order to be valid, the courts have made clear that police officers do not have to tell people that they can refuse to consent. In other words, a police officer does not need to read you your rights before asking you to consent to a search. Also, despite the widespread myth to the contrary, an officer does not need to get your consent in writing. Oral consent is completely valid. Do not, therefore, act under the misconception that because you never "sign" anything, your consent is not valid.
Police officers are often pretty tricky about trying to get someone\'s consent to a search. They know that most people feel intimidated by police officers and are predisposed to comply with any request by a police officer. For example, the average motorist stopped by a police officer who asks them, "Would you mind opening the trunk, please?" will probably consent to the officer\'s search without realizing that they have every right to deny the officer\'s request.
It is absolutely astounding how many people get arrested only because they consent to a search and the officer finds some marijuana. Evidently these people do not understand that they have a constitutional right to refuse to consent. In most cases, without even knowing it, people relinquish a substantial portion of their Fourth-Amendment rights by consenting to an officer\'s request to search. You should never hesitate to assert your constitutional rights, particularly when they are all that stand between freedom and arrest on a marijuana charge.
The sad fact is that most people believe that they are under some kind of obligation to acquiesce when an officer contacts them and asks permission to search them or their belongings. The truth is the exact opposite—you have a right to associate with, and speak to, whomever you please. In this respect, there is nothing special about a police officer. Assuming you would not let a complete stranger look through your purse or search your pockets, why would you allow a police officer to do so—especially if you knew you were in possession of marijuana? Just say "no!"
For example, if Officer Martin Marietta approaches a person and asks, "Do you mind if I look in your backpack?" he is asking the person to consent to a search. His question is no different from asking, "Would you please give up your Fourth-Amendment right and allow me to look in your backpack?" If, for any reason you don\'t want the officer digging through your belongings, you should refuse to consent by saying something like, "Yes, I do mind. I have private, personal items in my backpack and do not want you looking through them." If you\'re really squeamish about standing up to a police officer, keep the wallet cards in Appendix B with you and simply hand the appropriate card to an officer who asks you to waive a constitutional right. Simply present the card to the officer and say something like, "I\'ve been told to use this if a police officer ever asks me to consent to a search."
The point, to repeat, is that whenever a police officer asks your permission to search, you are under no obligation to consent. The only reason he\'s asking is that he doesn\'t yet have enough evidence to search forcibly. By consenting you are giving up one of the most important constitutional rights you have.
Though you are almost always best served by refusing to consent to any search, you should know that if you do chose to consent, your consent need not be absolute. It is perfectly appropriate to tell a police officer that he can search one particular area, but not another. The way you phrase your consent sets the boundaries on the officer\'s search. Provided that the officer does not turn up probable cause while searching the area that you have consented to have searched, he must go no further than you explicitly state. If the officer starts to search beyond the bounds of your consent you must politely, but forcefully, tell him to stop—that you did not consent to a general search—and that you will now be continuing on your way unless he is lawfully detaining you.
Generally speaking, a person gains nothing by consenting to a police officer\'s request to conduct a warrant less search. The many court cases on the subject reveal the great danger that often accompanies the waiver of the constitutional right to remain free from such searches. Just remember, any officer who asks your permission to search is looking for evidence that he doesn\'t have—yet. The whole point of the search is to look for, and hopefully find, incriminating evidence! Little is to be gained and much can be lost by waiving a constitutional right.
If an officer hassles you when you refuse to consent to a search, just tell him that you have personal items and you object to his violating your constitutional right to privacy. (Or give him the card in Appendix B.) If the officer still proceeds to search you and find marijuana, your attorney can argue that the marijuana was discovered through an illegal search and hence should be thrown out of court.
How Mr. Puff Asserted His Constitutional Rights
The following story illustrates the proper use of the constitutional right to withhold consent to a warrant less search. Officer Eli Lilly stopped Mr. Puff\'s vehicle because his registration was expired and asked Mr. Puff, "Would you please empty the contents of your pockets?"
Mr. Puff said, "Are you asking me to empty my pockets, or are you ordering me to empty my pockets?" When Lilly said he was simply asking, Mr. Puff said, "No thanks, and I really must be going."
Mr. Puff\'s question to Officer Lilly was entirely appropriate. In fact, Mr. Puff\'s response was an effective method of turning the tables on the officer. If Lilly had told Mr. Puff that he was ordering him to empty his pockets, Mr. Puff could have properly responded, "Get a search warrant. I do not consent to your search and would like to continue on my way." If the officer had proceeded to search Mr. Puff\'s pockets without a warrant, Mr. Puff\'s lawyer could argue that the search was illegal. If Mr. Puff had consented, his lawyer would have no argument.
The Plain-View Rule
As was briefly explained earlier, a "search" occurs whenever a government agent accesses an area in which a person has a reasonable expectation of privacy. A clear
example of a "search" occurs when an officer opens someone\'s purse and looks inside for marijuana. In such a case, the owner of the purse clearly has a reasonable expectation of privacy regarding its contents, and hence the officer\'s opening of the purse is considered a "search." The next question would be whether the officer had a warrant to search the purse or whether his search fell within one of the exceptions to the warrant requirement. On the other hand, if an officer\'s conduct is not considered a "search," the Fourth Amendment does not apply.
For example, suppose the purse in the above example was made of a clear, see-through plastic that exposed the contents of the purse to public view. In such a case, if an officer looked through the outside of the purse and (similar to looking through a car window) saw some marijuana in the purse, the marijuana would be in plain view, and the officer would immediately have probable cause to arrest the person and search the purse. A court would hold that the officer\'s observation of the marijuana was not a search, since it invaded no reasonable expectation of privacy.
However, as discussed in greater detail in Chapter 7, if marijuana is seen inside a home in plain view by an officer who is outside the home, the plain-view sighting gives the officer only probable cause to believe that marijuana can be found in the home. The officer still needs either a warrant, exigent circumstances, or consent to enter the home. In contrast, if an officer sees marijuana in plain view inside an automobile, and the officer is outside the automobile, the automobile exception (see Chapter 6) allows the officer to enter the car without a warrant and immediately seize the contraband. The reason for the different rules? A person inside a home has a greater reasonable expectation to privacy than a person inside a car.
The primary limit on the plain-view rule is that the officer\'s view must have been legally obtained. In other words, in order for the plain-view rule to come into play, the officer must have had a legal right to be in the place from which he saw the contraband. For example, if an officer is in your home with your consent and he happens to see some marijuana on your kitchen table, a court would consider the officer legally entitled to his view of the marijuana and uphold the officer\'s warrant less seizure of the marijuana. In contrast, if the officer was illegally inside your home when he saw the marijuana, a court would find that although the marijuana was in plain view, the officer was not legally entitled to that view. In that case, his warrant less seizure of the marijuana would be considered illegal, and the exclusionary rule would apply.
The plain-view rule is really a matter of common sense. It’s simply the Law’s way of saying that it won\'t protect your privacy if you don\'t protect your privacy. The bottom line: always keep your private items private—out of view. There will be more examples showing the operations of the plain-view rule in the chapters to follow.
How Wayne Learned about the Plain-View Rule
Officer Philip Morris stopped Wayne\'s car because Wayne\'s brake lights were not working. The officer approached Wayne\'s car and asked Wayne to step out. Officer Morris then asked Wayne for his driver\'s license and vehicle registration. When Wayne opened his wallet to remove his driver\'s license, Officer Morris saw a joint in Wayne\'s wallet. Officer Morris immediately searched Wayne, as well as the inside of his car. Inside Wayne\'s glove box, the officer found more than 100 marijuana joints. Wayne was arrested and convicted.
In the above scenario, Officer Morris observed the first joint in plain view when Wayne opened his wallet. The fact that Wayne possessed even a single joint gave the officer probable cause to search the rest of Wayne\'s person as well as the passenger compartment of his car.
The moral of the story is obvious. First, people who smoke pot are less likely to be stopped if they keep their cars in working order. Second, those who have a special relationship with plants that the government has declared illegal would be prudent to keep preparations of those plants away from their driver\'s license, registration, and any other objects or areas into which they might have to reach if stopped by a police officer. You\'d be surprised how many people keep marijuana on top of their sun visor right next to their car registration, never stopping to think about the problem that could ensue if they are stopped by the police.
Plain-View Paraphernalia
Not only can a police officer seize marijuana that he sees in plain view, but he can also seize any items that he has probable cause to believe are used for criminal activity. Examples of specific items that many states allow an officer to seize on sight include identifiable items of marijuana paraphernalia, such as pipes and roach clips.
Most states allow an officer to seize a pipe only if something about it indicates it is used to smoke marijuana. (For example, it\'s small, has a screen, has a vent, or contains marijuana residue.) Likewise, most state courts have ruled that a roach clip, by itself, is usually not seizable unless it holds the remnants of a joint or is accompanied by other signs of marijuana use.
Distinct Drug-Carrying Devices
Keeping marijuana and smoking aids out of plain view is common sense. Courts, however, have extended the plain view rule to encompass what they call "distinct drug-carrying devices." If you observed someone walking down the street carrying an electric-typewriter case, it would be reasonable to assume that the case contains a typewriter. In a similar vein, courts have held that certain containers are "distinct drug-carrying devices." If an officer observes such a container, the courts of most states allow the officer to immediately seize and search the container without a warrant.
In most states, the following containers have been held to be distinct drug-carrying devices that can be searched and seized without a warrant: small glassine envelopes, clear baggies filled with leafy substances, paper bindles, small party balloons filled with a powdery substance, and large blocks wrapped with dark garbage bags and taped with duct tape. Clearly, when at all possible, a person should not have in his or her possession such items, nor should marijuana ever be stored or transported in such containers. To do so simply screams out to the police, \'I\'m in possession of illegal drugs, feel free to search and arrest me!"
In one case, a Florida police officer detained Torin Thompson. The officer asked Torin for identification. Torin stated that his identification was inside a shaving case. The officer pat-searched the outside of the case and after detecting no weapon allowed Torin to reach inside to retrieve his identification. When Torin pulled his billfold from the case, a small brown manila envelope fell out onto the hood of his car, and Torin quickly but quietly attempted to brush it to the ground. The officer saw the envelope, picked it up, opened it, and found marijuana inside it. The Florida court held that the officer\'s warrant less opening of the manila envelope was illegal, because, although some brown manila envelopes may contain marijuana, "It cannot be said that most brown manila envelopes contain marijuana. There could have been any number of items in the envelope other than marijuana that Torin would wish to keep private." The court also stated that Torin\'s conduct in attempting to hide the envelope by brushing it to the ground "was no different than if he had simply told the officer that he did not want him to look into it without a search warrant." Torin was saved because he wisely put his marijuana in an opaque envelope rather than in a clear baggie. Most courts would probably agree with the Florida court that brown manila envelopes are not distinct marijuana-carrying devices.
The Arizona Supreme Court has, in effect, held that brick-shaped, dark plastic garbage bags are distinctive marijuana-carrying devices. In this case, Dennis Million and two of his friends were observed late one evening "carrying dark-colored garbage bags and packing them in various compartments within a [motor home]." After loading the motor home, the men began driving toward the California border. As they approached the border between Arizona and California, DEA agents stopped the vehicle, conducted a warrant less search, and recovered a total of 1,238 pounds of marijuana.
Dennis argued that the agents\' warrant less search of the plastic garbage bags was illegal because those bags were not distinct marijuana-carrying devices. However, the prosecutor defeated this argument by careful questioning that
How Wayne Learned about the Plain-View Rule
Officer Philip Morris stopped Wayne\'s car because Wayne\'s brake lights were not working. The officer approached Wayne\'s car and asked Wayne to step out. Officer Morris then asked Wayne for his driver\'s license and vehicle registration. When Wayne opened his wallet to remove his driver\'s license, Officer Morris saw a joint in Wayne\'s wallet. Officer Morris immediately searched Wayne, as well as the inside of his car. Inside Wayne\'s glove box, the officer found more than 100 marijuana joints. Wayne was arrested and convicted.
In the above scenario, Officer Morris observed the first joint in plain view when Wayne opened his wallet. The fact that Wayne possessed even a single joint gave the officer probable cause to search the rest of Wayne\'s person as well as the passenger compartment of his car.
The moral of the story is obvious. First, people who smoke pot are less likely to be stopped if they keep their cars in working order. Second, those who have a special relationship with plants that the government has declared illegal would be prudent to keep preparations of those plants away from their driver\'s license, registration, and any other objects or areas into which they might have to reach if stopped by a police officer. You\'d be surprised how many people keep marijuana on top of their sun visor right next to their car registration, never stopping to think about the problem that could ensue if they are stopped by the police.
Plain-View Paraphernalia
Not only can a police officer seize marijuana that he sees in plain view, but he can also seize any items that he has probable cause to believe are used for criminal activity. Examples of specific items that many states allow an officer to seize on sight include identifiable items of marijuana paraphernalia, such as pipes and roach clips.
Most states allow an officer to seize a pipe only if something about it indicates it is used to smoke marijuana. (For example, it\'s small, has a screen, has a vent, or contains marijuana residue.) Likewise, most state courts have ruled that a roach clip, by itself, is usually not seizable unless it holds the remnants of a joint or is accompanied by other signs of marijuana use.
Distinct Drug-Carrying Devices
Keeping marijuana and smoking aids out of plain view is common sense. Courts, however, have extended the plain view rule to encompass what they call "distinct drug-carrying devices." If you observed someone walking down the street carrying an electric-typewriter case, it would be reasonable to assume that the case contains a typewriter. In a similar vein, courts have held that certain containers are "distinct drug-carrying devices." If an officer observes such a container, the courts of most states allow the officer to immediately seize and search the container without a warrant.
In most states, the following containers have been held to be distinct drug-carrying devices that can be searched and seized without a warrant: small glassine envelopes, clear baggies filled with leafy substances, paper bindles, small party balloons filled with a powdery substance, and large blocks wrapped with dark garbage bags and taped with duct tape. Clearly, when at all possible, a person should not have in his or her possession such items, nor should marijuana ever be stored or transported in such containers. To do so simply screams out to the police, "I\'m in possession of illegal drugs, feel free to search and arrest me!"
In one case, a Florida police officer detained Torin Thompson. The officer asked Torin for identification. Torin stated that his identification was inside a shaving case. The officer pat-searched the outside of the case and after detecting no weapon allowed Torin to reach inside to retrieve his identification. When Torin pulled his billfold from the case, a small brown manila envelope fell out onto the hood of his car, and Torin quickly but quietly attempted to brush it to the ground. The officer saw the envelope, picked it up, opened it, and found marijuana inside it. The Florida court held that the officer\'s warrant less opening of the manila envelope was illegal, because, although some brown manila envelopes may contain marijuana, "It cannot be said that most brown manila envelopes contain marijuana. There could have been any number of items in the envelope other than marijuana that Torin would wish to keep private." The court also stated that Torin\'s conduct in attempting to hide the envelope by brushing it to the ground "was no different than if he had simply told the officer that he did not want him to look into it without a search warrant." Torin was saved because he wisely put his marijuana in an opaque envelope rather than in a clear baggie. Most courts would probably agree with the Florida court that brown manila envelopes are not distinct marijuana-carrying devices.
The Arizona Supreme Court has, in effect, held that brick-shaped, dark plastic garbage bags are distinctive marijuana-carrying devices. In this case, Dennis Million and two of his friends were observed late one evening "carrying dark-colored garbage bags and packing them in various compartments within a [motor home]." After loading the motor home, the men began driving toward the California border. As they approached the border between Arizona and California, DEA agents stopped the vehicle, conducted a warrant less search, and recovered a total of 1,238 pounds of marijuana.
Dennis argued that the agents\' warrant less search of the plastic garbage bags was illegal because those bags were not distinct marijuana-carrying devices. However, the prosecutor defeated this argument by careful questioning that convinced the court that, to an experienced DEA agent, the plastic bags were recognizable as distinct drug-carrying devices:
(Q) What type of garbage bag—you have used the word garbage bag —what type of garbage bags were they carrying that you observed at first?
(A) They were the dark large type that you would put in an outside garbage can. Dark green or black. They appeared very dark.
(Q) Did they appear to be empty or full?
(A) No, sir, they appeared to contain various objects in them that were—that they would bend when they would carry them. The garbage bags would bend and loose objects inside them could be observed.
(Q) How would you describe these objects you saw in the bags? (A) Well, they were individual objects, not large. I would
describe them, as from prior experiences, as brick-shaped
objects.
(Q) Have you seen these types of garbage bags on prior occasions?
(A) Yes, sir.
(Q) How many prior occasions? (A) A 100 or 150 times.
(Q) Have those been in connection with investigations of
marijuana? (A) Yes, sir.
(Q) Is there anything unusual, anything common about the
garbage bags, put it that way? (A) In this area, it is most common to find garbage bags of this
type to contain marijuana contraband. They are available
everywhere.
(Q) Is there some reason why garbage bags are used instead of cardboard boxes?
(A) One thing, they contain the smell better. Second, they are waterproof. They are able to pack them on different configurations very readily by pushing and shoving them into
Different locations in the compartment. They put talcum on them to deaden the odor.
The rule about distinct drug-carrying devices is a good example of one which, if known, can be used in the public\'s favor. For example, there are two favorable aspects to the courts\' defining what containers can be searched on sight. First, the public is put on notice never to hold or transp |
