DRIVER'S CONSENT
TO SEARCH OF VEHICLE LEADS TO FEDERAL PRISON
In 2002, two young men were
pulled over in Wyoming for speeding. They were
only traveling 6 miles per hour over the speed
limit. It was around 9:00 AM. The driver's license
and the passenger's were in good order. However,
the police officer used his access to criminal
histories to discover that both had prior criminal
records. After giving Rosborough a warning ticket
for speeding and providing them directions on
how to get to Omaha, the officer casually asked
if he could ask them a few questions. They said
'OK'. He then asked if there was any type of
illegal substances in the vehicle. Rosborough
(the driver) is alleged to have said, "if
you want to search the car, go ahead".
The search lasted nearly an
hour before the officer decided to call for
a drug dog. Rosborough tried to end the search,
stating that it was taking too long and was
detaining them. The officer promised to be brief.
Once the drug dog arrived and "alerted"
on the car, the search began in earnest, ending
ANOTHER 75 minutes later with the discovery
of 30 pounds of cocaine.
At a pre-trial hearing, Rosborough's
attorneys attacked the validity of the lengthy
search, under the Fourth Amendment to the U.
S. Constitution. The attorneys claimed that
consent was withdrawn, yet the police officer
would not end the search. Since Rosborough had
entered a conditional guilty plea to 25 years
to serve, with the first 20 in prison, the appeal
was essential to have any hope of overturning
the harsh sentence. Rosborough's attorneys had
reserved the right to appeal the 4th Amendment
issue of illegal search and seizure, which led
to this appeal.
The 10th Circuit Court of Appeals
AFFIRMED the plea, and rejected Rosborough's
claims that the search was non-consensual, that
it was too lengthy and that he had withdrawn
consent before any drugs were discovered. The
sentence was upheld. To read the entire case,
click HERE.
Mr. Head's commentary: Police officers
are trained to engage in this EXACT ruse. Befriend
the driver of the car, give a warning ticket
where appropriate and 'terminate' the police
encounter. THEN, casually ask for permission
to search the vehicle. Often, the conversation
will begin, "You know, we have had a
lot of problems with drugs along our highways.
You boys don't mind if I check your car for
drugs, do you?" Case law from across
America indicates that CONSENTING to a search
(as Rosborough apparently did) will authorize
a search for drugs that can last for hours (as
happened here). The best bet for anyone---with
or without drugs in their car---is to politely
decline by saying, "officer I need to be
on my way. There is no reason to believe I am
a drug dealer." Then, do NOT ever
change the NON-CONSENT to a consent, or you
can expect to join Mr. Rosborough in federal
prison. Exercise your right to remain
silent. Ask to speak with an attorney
IMMEDIATELY if arrested.
________________________________________________________
The United
States Supreme Court has expanded police powers
to search a motor vehicle even after the occupant
(who was arrested after leaving his car) was
nowhere near the vehicle such that he could
re-enter the car to get a weapon. The
old rule under New York v. Belton,
453 U.S. 454, 69 L. Ed. 2d 768, 101 S. Ct. 2860
seemed to depend upon whether there was proof
that the police had made contact with the suspect
BEFORE the car was abandoned by the driver.
In Thornton,
the U. S. Supreme Court did away with that distinction,
wiping out many Fourth Amendment protections
that Americans always believed that they had.
To Mr. Thornton, the search meant that a gun
was found inside. Coupled with the drugs
that were found in his possession (when he was
searched away from the vehicle), he faced (and
was convicted of) a much more serious offense,
under federal law due to increased punishment
whenever a firearm is found with the person
possessing drugs.
Now, police
can search cars or trucks for both "occupants"
and "recent occupants." While
an arrestee's status as a "recent occupant"
may depend on how close he or she was to the
car, or how long he or she had been OUT of the
car at the time of the arrest and search, after
Thornton, it no longer turns on
whether he was inside or outside the car when
the officer first initiated contact with him.
Although not all contraband in the passenger
compartment is likely to be accessible to a
"recent occupant," the need for a
clear rule, readily understood by police and
not depending on differing estimates of what
items were or were not within an arrestee's
reach at any particular moment, justifies the
sort of generalization which Belton
enunciated. Under petitioner's rule, an officer
would have to determine whether he actually
confronted or signaled confrontation with the
suspect while he was in his car, or whether
the suspect exited the car unaware of, and for
reasons unrelated to, the officer's presence.
Such a rule would be inherently subjective and
highly fact specific, and would require precisely
the sort of ad hoc determinations on the part
of officers in the field and reviewing courts
that Belton sought to avoid.
Part of the Rehnquist opinion reads as follows:
"And here, there is simply
no basis to conclude that the span of the area
generally within the arrestee's immediate control
is determined by whether the arrestee exited
the vehicle at the officer's direction, or whether
the officer initiated contact with him while
he was in the car. In all relevant aspects,
the arrest of a suspect who is next to a vehicle
presents identical concerns regarding officer
safety and evidence destruction as one who is
inside. Under petitioner's proposed 'contact
initiation' rule, officers who decide that it
may be safer and more effective to conceal their
presence until a suspect has left his car would
be unable to search the passenger compartment
in the event of a custodial arrest, potentially
compromising their safety and placing incriminating
evidence at risk of concealment or destruction.
The Fourth
Amendment does not require such
a gamble. Belton allows police to search a car's
passenger compartment incident to a lawful arrest."
The nine Supreme
Court justices were highly fragmented in their
opinions, but a majority agreed with the Chief
Justice (Rehnquist) as he wiped out more of
our federal constitutional protections.
Justice Scalia, in his concurrence, quoted another
judge's criticism of the Belton
rule, saying: "As one judge has put it: "In
our search for clarity, we have now abandoned
our constitutional moorings and floated to a
place where the law approves of purely exploratory
searches of vehicles during which officers with
no definite objective or reason for the search
are allowed to rummage around in a car to see
what they might find." Scalia,
a highly conservative justice, quoted these
words from another federal judge's opinion criticizing
our loss of constitutional rights, and ended
by saying, "I agree entirely with that assessment."
Mr.
Head's Commentary: The holding of this
case is applicable to DUI stops as well as drug
arrests. Even though this case dealt with
a federal drug arrest in Virginia, the issuance
of this sweeping change in the Fourth Amendment
protections we all have will have repercussions
in other arenas. Since around 1970, the
United States Supreme Court has consistently
handed down opinions that have the overall tendency
to reduce our federal constitutional rights.
The gains made during the years of the Warren
Court (when Chief Justice Earl Warren presided)
have been watered down or totally abandoned
by the members of the high court since around
1970. This opinion is a prime example
of the Court's willingness to stretch reason
to do away with a perfectly good rule that once
the person was away from his vehicle, and no
access to the vehicle was reasonable possible,
there was no reason for the police to be able
to make a warrantless search of the vehicle.
To learn more about our steady loss of constitutional
rights, read Lawrence Taylor's excellent article,
The DUI Exception to the Constitution.
