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snitzle_iii
 
quick and simple basicl legal question Search and seizure (ca)

im debating my friend about driving back with some chronic in the back of the trunk. my argument a speeding ticket does not validate a Search and seizure unless allowed to by the officer. ie. if caught speeding.

officer: do you know how fast you were going
me: am i being charged for anything
officer: you were speeding ect... DO YOU HAVE ANY DRUGS OR WEAPONS IN THE VEHICAL, DO YOU MIND IF I SEARCH:
me: i do not concent to a seach of my vehical
done and done.


friend thinks


officer: do you know how fast you were going
me: am i being charged for anything
officer: you were speeding ect... DO YOU HAVE ANY DRUGS OR WEAPONS IN THE VEHICAL, DO YOU MIND IF I SEARCH:
me: i do not concent to a seach of my vehical
officer: i smell weed in your vehical (or somethign to that extent)
...
searches car finds weed

1. does smelling weed validate search and seizure (this is assuming that the cop is full of bs)
2. isnt there some law that if a cop does do an illegal search/seasure/lie gets the case thrown out
done and done.

quick question. lets say swim is near a known crack house. the person gets pulled over for running a red or a traffic violation. the cop pulls the driver and passenger over. by law (california) does the passenger have to identify himself? does he have the right not to answer the officer since he was not involved with the traffic violation
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Last edited by snitzle_iii; 05-07-2010 at 07:38 PM..
Old 05-07-2010, 07:32 PM snitzle_iii is offline  
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Forever Domon
 
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search and seizure of a car is a lot different from that of a house. Im pretty sure your friend is right in most states.
Old 05-07-2010, 07:34 PM Forever Domon is offline  
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Forever Domon
 
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Quote:
Originally Posted by snitzle_iii View Post
im debating my friend about driving back with some chronic in the back of the trunk. my argument a speeding ticket does not validate a Search and seizure unless allowed to by the officer. ie. if caught speeding.

officer: do you know how fast you were going
me: am i being charged for anything
officer: you were speeding ect... DO YOU HAVE ANY DRUGS OR WEAPONS IN THE VEHICAL, DO YOU MIND IF I SEARCH:
me: i do not concent to a seach of my vehical
done and done.


friend thinks


officer: do you know how fast you were going
me: am i being charged for anything
officer: you were speeding ect... DO YOU HAVE ANY DRUGS OR WEAPONS IN THE VEHICAL, DO YOU MIND IF I SEARCH:
me: i do not concent to a seach of my vehical
officer: i smell weed in your vehical (or somethign to that extent)
...
searches car finds weed

1. does smelling weed validate search and seizure (this is assuming that the cop is full of bs)
2. isnt there some law that if a cop does do an illegal search/seasure/lie gets the case thrown out
done and done.
on the off case that it was an illegal search and seizure, nothing found is admissible.
Old 05-07-2010, 07:34 PM Forever Domon is offline  
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DreamWarrior
 
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Adopt the motto, "don't speed with weed."

As per your question; it's called probable cause. Search without warrant is legit if and only if the court decides the officer had probable cause to perform it. If they do, then evidence found during said search is admissible. If they don't, as mentioned above, said evidence is not admissible.

As far as your example, smelling weed is certainly probable cause. Successfully proving the officer did not smell weed in court, a task for the defense attorney, may rule out probable cause and make the search illegal. But...good luck with that.

Anyway, a better question is whether your refusing to consent to the search is probable cause to perform it.
Old 05-12-2010, 04:07 PM DreamWarrior is offline  
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Reapp
 
Refusal to consent to a search is not probable cause in and of itself but it might be used in conjunction with other elements to establish probable cause. I have asked for consent to search a vehicle when I already had probable cause just to see if it would be given, the answer was really irrelevant to what was going to happen anyway.
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Old 05-19-2010, 08:22 AM Reapp is offline  
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DHermit
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Well what your friend said is actually true, now I don't know CA's laws, as I fucking hate CA and wish they would become their own country, but the cops could say they smelled weed and search your car I believe (I know they can in FL).

Also, they could call a drug dog out and you'd have to sit and wait for it and then it would hit and you lose either way. Basically, don't speed with weed as said above is a good motto to follow. Also, don't be dressed like a scumbag, don't be smoking before or during your drive, etc. I've had 5 speeding tickets and never have I been asked to be searched.

Make sure no one in the car has any priors for possession, or any crime besides basic traffic violations, because they will pull up all of your records and if they see those, that is when they will start asking questions.
Old 05-19-2010, 08:35 AM DHermit is offline  
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OlderBoy
 
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most states have what is called a terry search aka frisk. they can do it anytime they want and don't need probable cause

as far as lying goes all cops can lie to you and any evidence they gather IS permissible in court. thank you Patriot Act
Old 05-19-2010, 09:18 AM OlderBoy is offline  
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OlderBoy
 
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Quote:
Originally Posted by domonbaylespam View Post
on the off case that it was an illegal search and seizure, nothing found is admissible.

speaking from first hand experience with a PAID lawyer, that search may have been illegal but it probably won't matter and OP probably WILL be found guilty of possession.

what happened to OP is EXACTLY what happened to me in 2008. i was found guilty of possession and sentenced to community service and ACD for a year.
Old 05-19-2010, 09:22 AM OlderBoy is offline  
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OlderBoy
 
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Quote:
Originally Posted by snitzle_iii View Post
snip
by law (california) does the passenger have to identify himself? does he have the right not to answer the officer since he was not involved with the traffic violation

according to the Patriot Act all persons MUST identify themselves when asked by an officer of the law AND any layperson. you MUST also present identification if requested.
Old 05-19-2010, 09:24 AM OlderBoy is offline  
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Quote:
Originally Posted by OlderBoy View Post
according to the Patriot Act all persons MUST identify themselves when asked by an officer of the law AND any layperson. you MUST also present identification if requested.


The vast majority of states had "ID" laws long before the patriot act.

In fact, they can detain you for refusal to identify because they cannot ascertain *who* you are.
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Old 05-19-2010, 12:44 PM Zangmonkey is offline  
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Quote:
Originally Posted by Zangmonkey View Post
The vast majority of states had "ID" laws long before the patriot act.

In fact, they can detain you for refusal to identify because they cannot ascertain *who* you are.


^^ this. If your passenger doesn't identify himself they'll say "ok, step out of the car" and take him to jail. They can hold him there for the rest of his life if he refuses to aid in figuring out who he is. This is no
Old 05-19-2010, 03:14 PM DHermit is offline  
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Corbin
 
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California doesn't have a stop and identify statute. Only about half the states have one, not a "vast majority" as stated above.

Fun fact: California use to have a stop and identify statute, one that went much further than the one from Nevada (I think it was Nevada) that was recently upheld by the Supreme Court. The California statute was pwned by the Supreme Court as unconstitutional. Keep in mind the Nevada statute upheld required that the person be detained under reasonable suspicion of involvement in a crime and that the Nevada Supreme Court interpreted the law as only requiring that you state your name (no I.D. required).
Old 05-24-2010, 12:44 PM Corbin is offline  
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RedEyes
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Quote:
Originally Posted by OlderBoy View Post
most states have what is called a terry search aka frisk. they can do it anytime they want and don't need probable cause

as far as lying goes all cops can lie to you and any evidence they gather IS permissible in court. thank you Patriot Act

there's even an arguable doctrine known as "plain frisk" like plain sight
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Old 05-26-2010, 11:45 AM RedEyes is offline  
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Pudah
 
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First of all, don't be a dumbass and say, "Am I being charged with anything" when the officer asks if you knew how fast you were going. Be polite and honest and you wont put him/her on edge and give a reason to be suspicisous. Take the ticket and move on. Second, dont speed in the first place.

If they do smell something they can search. It'd be pretty hard proving they didn't if anything is found. If you dont give permission that will also send up red flags and they'll end up trying to get a warrant for your or "finding" some probable cause. Again, if they find anything, you're not going to have an easy time proving they didn't have probable cause, even if they were lying.
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Old 05-26-2010, 11:49 AM Pudah is offline  
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