There I think we are back in a gray area. Obviously the officer has to search him when he is taking him into custody - he might have drugs or a weapon. But why would he need to search his phone (or his car) while taking him into custody for a failure to appear warrant on a traffic violation? Much as I hate the baby bouncers, that to me is an unreasonable search.No, reading her ramblings made it pretty obvious that side of the argument was wrong, which made me re-read the majority opinion and think it through.
I'm still not in agreement with argument that the evidence found subsequent to the illegal stop should be allowed simply because there was a warrant, but I understand the position and how it can make sense in a lot of instances.
For example, lets say a cop pulls over someone with insufficient grounds (ie, an illegal stop). Then it turns out there's a warrant out for the guy for armed robbery. Obviously the guy is going to get arrested for the warrant. Now suppose when arresting him on that warrant, you find a bunch of child porn on his phone, he's been making videos. Should you basically ignore that evidence and let him walk, or do you add on additional charges based on the evidence found?
The evidence you found was because of the search related to the legitimate warrant. The fact that it came subsequent to an illegal stop doesn't really change the equation. That's essentially what the majority is saying.
Personally I'd be fine with admitting a murder weapon. I just think that the bar should be quite high, otherwise the Fourth Amendment is effectively abolished in that instance. It could be as simple as "I smelled marijuana".
Personally I'd be fine with admitting a murder weapon. I just think that the bar should be quite high, otherwise the Fourth Amendment is effectively abolished in that instance. It could be as simple as "I smelled marijuana".
No, I am saying that the smell is too low a bar for attenuation if the stop is illegal. Especially so given that "I smelled marijuana" can be neither proven nor disproven, so it becomes a magical key to all locks.I'm not sure what you're getting at the end of your post. The court shad ruled that plain smell of marijuana is probable cause for a stop. Or are you saying that plain smell is too low of a bar?
- Merg
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There I think we are back in a gray area. Obviously the officer has to search him when he is taking him into custody - he might have drugs or a weapon. But why would he need to search his phone (or his car) while taking him into custody for a failure to appear warrant on a traffic violation? Much as I hate the baby bouncers, that to me is an unreasonable search.
There I think we are back in a gray area. Obviously the officer has to search him when he is taking him into custody - he might have drugs or a weapon. But why would he need to search his phone (or his car) while taking him into custody for a failure to appear warrant on a traffic violation? Much as I hate the baby bouncers, that to me is an unreasonable search.
No, I am saying that the smell is too low a bar for attenuation if the stop is illegal. Especially so given that "I smelled marijuana" can be neither proven nor disproven, so it becomes a magical key to all locks.
Yep. I used to have long hair and drive jacked up hot rods; I've been pulled over a LOT. I've had my car searched, my bumpers measured, even my exhaust dB measured. (They did not realize that I had installed cable-driven cut-outs that allowed me to open up the headers, bypassing the mufflers.) I've never been stopped when I had anything illegal. But if they search the car as part of a routine traffic stop and find contraband, and the stop is ruled illegal, then barring some unusual event the evidence is inadmissible.um.. you've never had your car searched b4 because of a routine traffic stop, I take it?
Agreed.I agree. When arresting somebody out of the car, you can only search the car if there is probable cause to believe there is further evidence of the crime in the car (Arizona v Gant).
A way that could be circumvented though would be if the vehicle needs to be towed. In that case, the police are allowed to inventory the vehicle as part of the administrative process of towing it. Searching the phone though would be completely off limits.
- Merg
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Agreed. I don't agree that meth should rise to the level of attenuation due to its own seriousness, or that a failure to appear should rise to the level of attenuation due to its own seriousness. I think we have to balance the societal damage from not prosecuting the junkie to the societal damage of ignoring the Fourth Amendment. I certainly agree that the minority opinion has logic and merit, I just disagree that this particular instance should be anywhere near that bar. Freedom is too precious and too hard to regain.um.. the person had the illegal drugs on him.
but yeah, searching his phone + car for being stopped while he was walking should be illegal.
and anything found should be poisoned fruit.
I agree that's the case, although I disagree that it SHOULD be the case. But in this case, I was referring specifically to attenuation.The point though is that if the officer smelled marijuana to begin with, the stop would have been legal.
- Merg
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Be interesting to get the actual definition of attenuation explained by one of our lawyers.
I full agree with your last paragraph, and well said. Often we don't get a right choice and a wrong choice, but two (or more) bad choices. Sometimes the relative weight is overwhelmingly apparent, such as stealing food for a starving child. Other times, like this case, the balance is much more debatable. I only know that of the two choices, I'd much rather have another meth head roaming the streets than set the precedent that illegal searches can produce actionable evidence for even the most trivial of offenses. Guess I'm one of those troglodytes with an old-fashioned appreciation of freedom.
I think it was to attenuate the illegal stop, basically saying that the illegal stop ceases here and the warrant takes over. But hopefully one of our lawyers will weigh in.Looking over the case I believe that my understanding of the word attenuation was not how the word was being used in this case, that it was actually being used to attenuate the illegality of the arrest not the guilt of the victim.
But the hypothetical you're laying out is their best case scenario.
And your Sotomayor disdain is noted for the record.
But the hypothetical you're laying out is their best case scenario.
And your Sotomayor disdain is noted for the record.
Looking over the case I believe that my understanding of the word attenuation was not how the word was being used in this case, that it was actually being used to attenuate the illegality of the arrest not the guilt of the victim.
I agree that's the case, although I disagree that it SHOULD be the case. But in this case, I was referring specifically to attenuation.
Yes, that is what I am saying. The "smell of marijuana" is inherently unprovable, so it amounts to a fishing license. If the officer finds weed, it's admissible. If he doesn't but he finds anything else, that too is admissible, with the understanding that perhaps the weed was all smoked.Okay, I'm still confused. Are you saying that plain smell of marijuana should not be a valid reason to detain someone?
In the case in front of the Supreme Court, the whole issue was over the stop being illegal, which everyone involved in the case agreed with. If the stop had started due to the officer smelling marijuana, this case never would have gotten to the Supreme Court.
- Merg
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Yes, that is what I am saying. The "smell of marijuana" is inherently unprovable, so it amounts to a fishing license. If the officer finds weed, it's admissible. If he doesn't but he finds anything else, that too is admissible, with the understanding that perhaps the weed was all smoked.
If the subject consumes the drug in front of the officer, then the officer should be able to get a warrant for a blood test. At that point, you have hard evidence. An odor, not so much.Okay, what about the odor of PCP? PCP has a very unique smell, just like marijuana. If an officer smells the odor of PCP coming from someone (or from a vehicle), should that not be a valid stop?
I will say that in all the cases that I've heard where they start off with the "smell of marijuana", even in the cases where nothing is found, there is usually some sort of indicator that marijuana was present at some point in time, such as evidence of shake or more often than not, the defendant admits that they previously had marijuana on them or smoked it.
And if you go with the idea that the "smell of marijuana" is inherently unprovable, so can the idea of plain view. If an officer sees marijuana and the subject immediately consumes it, how is that any different than plain smell?
- Merg
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If the subject consumes the drug in front of the officer, then the officer should be able to get a warrant for a blood test. At that point, you have hard evidence. An odor, not so much.
My nephew had his Mustang searched at high school because an officer "smelled marijuana". Problem is, the drug dog refused to alert. They walked him up and down the car until he had totally trashed the paint on an almost-new Mustang, then got my nephew out of class and demanded that he open up the car. At that point, the drug dog proceeded to trash the interior of the car - and yet never alerted. (Honestly, is it that freakin' difficult to clip a dog's toenails before letting him/encouraging him to climb all over someone's property?) Neither did a manual search uncover any contraband. Finally the cop admitted that he had not smelled marijuana at all, he had gotten "an anonymous tip" about a kid dealing drugs and had simply identified the wrong car. Yet it's a high school - how many cars in the parking lot would be totally free of marijuana? Probably three times out of four, that cop would have been vindicated. Even me; while I never smoked weed, or allowed anyone else to smoke weed in my car, I damned sure sometimes had passengers who were heavy users.