Unlawful search and seizier ?

[heatherrae]

I'm going to go back up and add info about Miranda warnings in my post. So many people misunderstand Miranda.

 

[Sub-Zero]

It comes down to probable cause. An officer must have a reasonable belief that a crime has been committed by that person for a warrant to issue for the search. If there is a later determination that no probable cause existed and there is not a good faith exception for the search, the resultant evidence is inadmissable. There are exceptions when a search and seizure is okay without a warrant. Some of the really common ones are when you leave something in plain sight for the cop to see it or when the search is incident to arrest.

A vehicle has a lower protection than a home with regard to search and seizure. A routine traffic stop does not give rise, without other circumstances, to probable cause to search the vehicle. However, cops will act like it does to get your consent to search. If you consent to the search, the search and seizure is lawful. The cases state that if you have a resonable belief that you have the right to not consent that the consent is valid. Your "friend" may ask his lawyer to present the defense that the cop acted as if he did not have the right to refuse consent, but I doubt that it would work in this case.

Now, there is a stop that is called a "Terry stop." The cop does not have to have probable cause, only a reasonable suspicion to briefly stop you and ask you to identify yourself and to pat down the outside of your clothing. If they find something this way, it is admissable and is not unlawful search and seizure.

NOW PEOPLE PLEASE READ THIS! If you are ever in trouble it will give your defense attorney something to work with. When interacting with police:

1. Don't run.
2. Don't argue or resist.
3. Don't EVER touch a police officer.
4. Request a lawyer immediately!
5. Don't make ANY statements beyond your name and address. SHUT UP. 99% of cases that are lost seem to be because defendants can't STFU. If you fail to give your name, you can be arrested for it. However, if your name alone will incriminate you for something much bigger, then consider the STFU method and let your lawyer defend it later.
6. For the love of Pete, don't consent to any searches of your car, your home, your person, NOTHING, unless you have absolutely NOTHING to hide.

Some more things you should know:
1. Once you request a lawyer, the interrogation must stop. However, if you are an idiot and just start initiating conversation with the cops again, it is admissable.

2. Police can and do LIE. They can and will lie to you about what other people told them, what evidence they have, etc. They do this to get you to give up and confess or to start making ridiculous statements or start changing your story. PLEASE SEE STFU section, above...lol.

3. Cops will tell you that if you are a good boy/girl that they will go easy on you. That isn't their job. Don't fall for that. Police have NO AUTHORITY over what crime is charged. The prosecutor does. SEE STFU, above and save any plea bargaining/deals for the prosecutor and your lawyer to hash out. The police are not going to cut you loose and have no authority over what eventual charges the prosecutor will charge.

4. Politely note the names and badge numbers of all officers with whom you deal, but don't act like a belligerent asshole and yell demands for them.


hmmmm...if I think of anything else I will add it.

Your friend f'd up by consenting to the search.

EDIT TO EXPLAIN MIRANDA RIGHTS*****
A cop can ask you your name and address without reading you your miranda rights. However, if you are being detained or are going to be arrested, statements resulting from questioning are inadmissable unless you are read your Miranda rights. However, if no one asks you a damn thing and you blurt out things before you are mirandized, they are admissable. Likewise, if you are Mirandized and still choose to speak, it is admissable. SOOOOO....See STFU above. You have the right under the Fifth Amendment of the Constitution not to incriminate yourself. So, STFU.

Anyone seeing a pattern here? lol.

wouldnt it be very easy for a cop to claim he gave you your miranda rights or that it was in plain site, etc

 

[heatherrae]

wouldnt it be very easy for a cop to claim he gave you your miranda rights or that it was in plain site, etc

Please see the "cops lie" section....lol.

yes, it happens all the time. Most of the time they do give you the Miranda rights though. They know most idiots will try to talk their way out of it despite the miranda warnings.

 

[samoth]

The retired DA teaching at my university told us that police officers are no longer required to give Miranda's.

 

[heatherrae]

The retired DA teaching at my university told us that police officers are no longer required to give Miranda's.

Really, that would be news to me. If it is true it must have happened in the last year.

Technically, a cop doesn't have to give them, it is just that anything said to him in interrogation is inadmissable otherwise.

However, if there have been changes in Miranda, i think I would have heard about it, even though I didn't practice law for a while.

I'm going to go look if I can find any changes.

 

[samoth]

Really, that would be news to me. If it is true it must have happened in the last year.

No, I took the class around late '02/early '03. Intro to CJ. Prof was ex-DA for the county. She told of how cops could (and would) lie and the whys of such, and mentioned that they no longer needed to do the Miranda thing. She probably mentioned why, but I don't recall. There might've been stuff beyond the scope of the class that comes into play as well, so I just leave this as "my old CJ prof/ex-DA said" when I mention it, since this isn't an area I know much about at all.

 

[heatherrae]

No, I took the class around late '02/early '03. Intro to CJ. Prof was ex-DA for the county. She told of how cops could (and would) lie and the whys of such, and mentioned that they no longer needed to do the Miranda thing. She probably mentioned why, but I don't recall. There might've been stuff beyond the scope of the class that comes into play as well, so I just leave this as "my old CJ prof/ex-DA said" when I mention it, since this isn't an area I know much about at all.

I see. I think she meant technically speaking they don't have to be read. Miranda being reversed would have made BIG news, I'm sure.

 

[samoth]

Oh, I should add that this was only regarding on-the-spot arrests, and not anything legally "big".

"Due to the prevalence of American television programs and motion pictures in which the police characters frequently read suspects their rights, it has become an expected element of arrest procedure. In 2000, Chief Justice William Rehnquist wrote that Miranda warnings had "become embedded in routine police practice to the point where the warnings have become part of our national culture" (Dickerson v. United States, 530 U.S. 428). However, police are only required to warn an individual whom they intend to subject to custodial interrogation at the police station, in a police vehicle or when detained. Arrests can occur without questioning and without the Miranda warning — although if the police do change their mind and decide to interrogate the suspect, the warning must then be given. Furthermore, if public safety warrants such action, the police may ask questions prior to a reading of the Miranda warning, and the evidence thus obtained can sometimes still be used against the defendant." (Wikipedia)

Okay, so that pretty much answers that, lol. I was just looking at the arrest POV, not the (more true) generalized case as you probably were.

 

[samoth]

I see. I think she meant technically speaking they don't have to be read. Miranda being reversed would have made BIG news, I'm sure.

Yeah, that's what I poorly attempted to say, lol.

Late teen/early 20's people that I've known (usually the less educated ones) tended to believe the media-influenced idea that if a cop didn't read you the Miranda rights, you got an automatic get out of jail free card. That's probably why this stuck out in my head so much.

 

[heatherrae]

Oh, I should add that this was only regarding on-the-spot arrests, and not anything legally "big".

"Due to the prevalence of American television programs and motion pictures in which the police characters frequently read suspects their rights, it has become an expected element of arrest procedure. In 2000, Chief Justice William Rehnquist wrote that Miranda warnings had "become embedded in routine police practice to the point where the warnings have become part of our national culture" (Dickerson v. United States, 530 U.S. 428). However, police are only required to warn an individual whom they intend to subject to custodial interrogation at the police station, in a police vehicle or when detained. Arrests can occur without questioning and without the Miranda warning — although if the police do change their mind and decide to interrogate the suspect, the warning must then be given. Furthermore, if public safety warrants such action, the police may ask questions prior to a reading of the Miranda warning, and the evidence thus obtained can sometimes still be used against the defendant." (Wikipedia)

Okay, so that pretty much answers that, lol. I was just looking at the arrest POV, not the (more true) generalized case as you probably were.

Yeah, that is exactly what I meant. They can detain, but before interrogating they have to mirandize for the statements to be admissable. They mention in the end that some statements pre-miranda but post custodial detention can be admissible but the only exception that I recall of this sort was when the defendant made statements on his/her own without any questioning, and, of course, name and address.

So, I think we agree.