Texas police shake down drivers, lawsuit claims

[Archangel M]

Where the PC v RS confusion arises here is in the Texas Code regarding property seizure.

http://www.texascriminallawyerblog.com/

Chapter 59 of the Texas Code of Criminal Procedure deals with Forfeiture of "Contraband"-- defined as property used in the commission of a long list of felonies set forth in the code, as well as another laundry list of misdemeanors, as well as a "Crime of violence."


In Texas, the State must prove that the property is subject to forfeiture by establishing that the property is contraband as set forth in the Code. Before seizing property thought to be subject to forfeiture, the State has to show probable cause. Probable cause in the forfeiture statutes is a reasonable belief that a substantial connection exists between the property to be forfeited and the criminal activity set forth in the statute.


Thus, probable cause to seize such property is not the same as the probable cause necessary for the lawful search, lawful arrest, or lawful search incident to arrest as set forth in the statute. Rather, the substantial connection must be shown after the legality of the search itself is tested.

The use of "PC" in the Texas criminal code is not the same as is common use. It is basically reasonable suspicion as commonly defined.

 

[Archangel M]

All Arizona v Gant did for me is convince me to tow EVERY car that I arrest the driver out of. Then I can do the inventory prior to tow.

 

[5-0 Kenpo]

That's a stretch... Mimms and Wilson give us the authority to control the movements of all of the occupants of the car, either keeping them in the car or having them exit. They don't really address searches...

I understand that. Mimms however does allow me to set up a situation in which I can legally enter the car for the proper paperwork.

The Carroll Doctrine gets you a search of the car, if you have PC that the evidence you're searching for is in the car, but I think you're stretching to search for evidence of insurance/licensing.

You may disagree with it, but it is used successfully in prosecution in California all the time. Don't know what else to tell you.

Also from the CPOLS:

Indeed, in any vehicle detention situation where the driver, upon your request, "fails to produce" the necessary documentation, you have the right to conduct a limited search for the driver's license or identification and/or the vehicle registration. Furthermore, this search--which must be carried out before you issue the citation--is not restricted to "traditional repositories," such as a glove compartment or a sun visor, but rather may included any area within the vehicle where such documentation reasonably may be expected to be found. (Arturo D. (2002) 27 Cal.4th 60.) Note that this area would normally not include the vehicle's trunk.

If you haven't, read Gant. While the Court went to some lengths to make it clear that several exceptions to the search warrant requirement still remain -- it took away the idea of using Chimel to get a "wingspan" search incident to arrest.

Took a quick look at the case. From my perspective, it really doesn't change much about how we do business.

We are talking about a "routine" traffic stop. One maybe two officers detaining one or more occupants inside of a vehicle for a traffic offense. In that case, Gant would not apply. Gant specifically talks about the fact that he and the other occupant were handcuffed and "surrounded" by police officer, negating his ability to access the car.

A recent VA ruling (sorry, don't have the cite handy) also made it clear that, in VA, we can't make a custodial arrest for a releasable offense without justification solely to get into the car.

We have the same thing in California. However, we also, per statute, use the Federal rules of evidence. Therefore, even if the evidence is found based on a technically illegal arrest, the evidence would still be admitted under Federal guidelines, which makes no distinction.

I suspect that the courts will frown on creating a circumstance, like ordering the driver & occupants out of the car, to justify a search for the registration card. Especially if the areas or sequence of the search wasn't pretty directly towards likely areas...

They wrote the opinions, not cops. If it is technically correct, then there is nothing they can do about it other then overturn established case law.

The situations described are a bit more than simply stopping a car, ordering the driver out, and searching for the registration. Even then, I suspect that your courts would have problems with a search for the registration that starts in the back seat. Even though I've had t-stops with cars where the registration was in the back seat... We still run into that reasonableness requirement from the Fourth Amendment, and I think that a search for the registration that starts far away from the driver is going to be problematic.

And as you say, you have found registration in the back seat. So have I. But, courts tend not to look at things on an individual basis like that. What they will ask is was the scope of the search reasonable in light of the circumstances. If so, what does it matter whether the search started under the front passenger seat or in the glove box.