I'll let him know that some guy on the internet says he's doing it wrong.
pulled over for vaping
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I'll let him know that some guy on the internet says he's doing it wrong.
I doubt it's just me, and this has been clarified by a LAWYER also. He chimed in very early in this thread, perhaps you missed that.
Of all the nerve! He violated your 4th Amendment rights. You did not have to allow him to search your car as he didn't have probable cause. Now they can use the line of, "If you don't have anything to hide......etc." Do not fall for that garbage. You can ask for a supervisor to be present since you're alone and DO NOT CONSENT to this search of your car or person. Then say nothing else. OR...you can also state you wish for your attorney to join you before he does anything. If he continues to state that he feels he has probable cause, I would ask: "Officer, I insist on contacting my attorney before I consent to anything because I'm not certain what rights I would be giving up."
He thought you were smoking dope in a new kind of holder and wound up with egg on his face. Knowing me, I would have gotten his name, gone to the police station and registered a complaint. Don't get me wrong.....I am a law abiding citizen that hates any kind of confrontation. However, there just comes a time when the police has to follow the law too! I'm putting my soapbox back under the computer desk, now.
He thought you were smoking dope in a new kind of holder and wound up with egg on his face. Knowing me, I would have gotten his name, gone to the police station and registered a complaint. Don't get me wrong.....I am a law abiding citizen that hates any kind of confrontation. However, there just comes a time when the police has to follow the law too! I'm putting my soapbox back under the computer desk, now.
Shane, The officer did not have probable cause to search the vehicle that is why he obtained consent first. A hunch does not give probable cause or even reasonable suspicion. By asking the OP to "step out of the vehicle so I can search it" the officer used a play on words to trick the OP into consenting. By stepping out of the vehicle you are implying intent to authorize the search and that is all they need. Its a dirty trick people should be aware of so they don't unknowingly give up their rights.
I'm curious as to why you would consent to a search of your vehicle. If the officer searched your vehicle without your consent then I would be on the phone with a lawyer. You vaping on a ecig is not probable cause for an officer to search your vehicle without consent.
Move to a college town and you might have a totally different thought pattern on this one... In fact, I see it all the time and unfortunately know a few idiots who do...
If you've ever been in a head shop and looked at some of the products, you will probably understand a little better how an officer might have come to that conclusion with all the fancy smoking devices the illicit "herbal" community have to enjoy... So this actually doesn't surprise me...
I think the best way to handle this... get a second kit with a bottle of mild tobacco flavor and if it ever happens to you - ask the officer if he is a smoker... how much... and then "PAY IT FORWARD" ... LOL ---
Rhanston, the argument isn't whether a particular behavior happens or not, its about how the officer conducted the investigation. While observing the OP vape certainly gives the officer the right to pull them over and conduct an investigation, nothing in that preliminary investigation gave probable cause to conduct a warrant-less search. Had there been probable cause the officer wouldn't need consent, could detain the operator, and proceed with the search. The officer obviously realized there wasn't enough evidence to warrant it and proceeded to obtain consent for the search, but the manner in which he did it was back handed. If he had directly asked the person if they would consent to a search, ie. "would you mind if I search your vehicle real quick?" it would be one thing, however, the officer said "please step out of your vehicle so I can search it." By stepping out of the vehicle the OP implied consent and the officer then had all he needed to conduct the search. It is not the job of LEO's to coerce people into waiving their rights so they can make more arrests. While probable cause and reasonable suspicion aren't black and white, they are not blankets they can use to search you for little reason, or scare you into letting them do it.
I thought I read a 401, in my opinion, that is the size of the cig I smoked Capri......................just foolishness, I'm still waiting for Obama to go to Arizona..................(think about what I said),,hehehe.
Police use trickery all the time as part of their jobs, and the U.S. Supreme Court has given its okay. For example, when interrogating suspects, police can lie about what evidence they have, or whatever, in order to get the suspect to confess.
Police often use psychological manipulation tactics to obtain consent for searches when they don't have warrants or probable cause. They are trained for this. And the U.S. Supreme Court gives police a LOT of "wiggle room" before they are prepared to rule consent invalid due to "intimidation."
But is this really a bad thing? About 90% of suspects that are "tricked" are guilty of crimes, often serious ones. As a member of society, I want murderers, rapists, and drug dealers to go to jail even if they are tricked into hanging themselves.
As a lawyer, however, it is my job to advise clients on their rights under the law. Yes, a police officer has the right to seek consent to search if he or she has no probable cause, and the person of interest has the right to refuse. That doesn't make either one the "good guy" or "bad guy," it's just how the system works. Since I deal with it all the time, for me it's sort of a game.
RadicalJD
Police often use psychological manipulation tactics to obtain consent for searches when they don't have warrants or probable cause. They are trained for this. And the U.S. Supreme Court gives police a LOT of "wiggle room" before they are prepared to rule consent invalid due to "intimidation."
But is this really a bad thing? About 90% of suspects that are "tricked" are guilty of crimes, often serious ones. As a member of society, I want murderers, rapists, and drug dealers to go to jail even if they are tricked into hanging themselves.
As a lawyer, however, it is my job to advise clients on their rights under the law. Yes, a police officer has the right to seek consent to search if he or she has no probable cause, and the person of interest has the right to refuse. That doesn't make either one the "good guy" or "bad guy," it's just how the system works. Since I deal with it all the time, for me it's sort of a game.
RadicalJD
Thanks JD, I'm just envisioning someone in the near future being pulled over because of their e-cig, thinking they're doing nothing wrong, while one of their passengers discretely wedges a baggie into the passenger seat. They consent to a search and see ya in court.
Most people are not aware of their rights. I see this all the time and never cease to be amazed at the number of folks who consent to a search even when they KNOW that the police will find contraband. The same applies to confessions. I'd say roughly 70% of my clients in criminal cases would not have been arrested or charged if, depending on the circumstances, they had refused to consent to searches or simply kept their mouths shut. That is why I spend at least as much time preparing for hearings on evidence suppression motions as I do on actual trials.
As it related to our discussion, there isn't a heck of a lot a person can do if his rights are violated (except maybe file a complaint, which will be ignored), unless the officer actually finds contraband and the person is charged. If the officer does find contraband in a search that was NOT consented to, then the defense attorney will have an easier time suppressing the evidence on "no probable cause" grounds than trying to show that consent was coerced.
As for me personally, I would never consent to any search, even though I never carry around contraband. Earlier in this thread, I recounted an experience I had with U.S. Border Patrol Agents in this regard.
RadicalJD
YIKES!
i would go on explaining what it is firrst and give him a good idea, but my lesson would be a bit more memorable and sarcastic
i would go on explaining what it is firrst and give him a good idea, but my lesson would be a bit more memorable and sarcastic
Ok, just talked to my friend again, and I apparently misquoted him. He doesn't think there was PC for a search, but the gap between reasonable suspicion and probable cause is narrower than a lot of people think. The fact that according to the OP, the officer did not ask to perform a search tells him it's possible the officer thought he'd satisfied probable cause. Remember that you don't need an assurance of guilt to have probable cause, just a reasonable expectation that a crime has been committed. It might have been thrown out in court, it depends on the judge. Some here would agree with the officer, some wouldn't and would throw any evidence found out.
My buddy did agree to NEVER giver consent to do a search. JD's advice is spot on. Always deny consent and ask if you're being detained. If the officer says no, then you're free to go. If an officer tells you that he's going to search your car, and you don't tell them that you do not consent to a search, then it can be considered implied consent since you didn't object. He said that's pretty shady, but some cops will do things like that.
My buddy did agree to NEVER giver consent to do a search. JD's advice is spot on. Always deny consent and ask if you're being detained. If the officer says no, then you're free to go. If an officer tells you that he's going to search your car, and you don't tell them that you do not consent to a search, then it can be considered implied consent since you didn't object. He said that's pretty shady, but some cops will do things like that.
I would have told him to eff off and get a real job... He was obviously VERY bored at the time and wanted to do what he probably does best, be a complete .... to the people who pays for his friggin salary..
.. the way I see it If my car's clean, I have the right to be a complete .... back..
sorry to hear that.. it's never fun gettin hassled by the 5-0
.. the way I see it If my car's clean, I have the right to be a complete .... back..
sorry to hear that.. it's never fun gettin hassled by the 5-0
Well, implied consent is not as simple as failing to object. There must be some affirmative response on the part of the searchee. Most officers don't say, "will you give me your consent to search your car?" they are more heavy-handed, like "you don't have a problem with me taking a look around inside your car, do you?" And while saying that, the officer gives a glare that would make the typical person assume that it's not really a request, more of a command. Consent could be just a wave of the hand or some gesture that woul mean to an average person, "Yeah, go ahead."
Thus, the best way to avoid any doubt that no consent exists is to clearly state, "I do not consent to a search."
One thing to remember, if the officer is searching despite your objections, never do anything to attempt to interfere. That could raise other problems.
RadicalJD
It's amazing how many of us ordinary citizens don't even know half of this because we've never been pulled over for suspicious behavior. I am disabled and don't go many places without my husband. I am ambulatory, but deal with mega pain many days. That's life. On a fairly decent day when I am able to go out alone, the last thing I want is to be harassed by someone.....especially when the law enforcement is supposed to be on MY side. I have yet been pulled over and arrested for driving under the influence of tobacco....and now only under the influence of nicotine.
Radical, I guess it is a game....to them....not to me. If I wanted to play a game, I'd pull one up on the computer!
However, after going over the posts, the door has been opened for learning by the city. I give them A+ for that.
People need to read the Constitution and learn their rights as citizens of this once great nation. It's mind boggling what we can all learn!
Radical, I guess it is a game....to them....not to me. If I wanted to play a game, I'd pull one up on the computer!
However, after going over the posts, the door has been opened for learning by the city. I give them A+ for that.People need to read the Constitution and learn their rights as citizens of this once great nation. It's mind boggling what we can all learn!
Read, Learn, Take Action. Looks like that's gonna be our motto for some time. Nothing we can do about stupidity (incurable), but we can fight ignorance with knowledge. All I want to do is vape in peace, no dirty looks from the patrol officer and no FDA regulator looking over my shoulder because I finally found a way to escape the plumes of analog hell.
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