Am I crazy?

[MI Law]

I’ve been overruled on this and I’d like to hear opinions from others.

An officer makes a valid traffic stop and the driver has a warrant for possession of paraphernalia from a different agency. While the warrant is being confirmed and the other agency is deciding whether or not they want the individual, the officer engages the driver in conversation. Eventually the conversation leads to asking for consent to search the car. The driver says yes. The driver then asks what will happen if she says no. The officer explains that he will not search the car, but he’s not out screw her and he’s a man of his word. The officer says, “I’m not concerned with a crack pipe or chore boy or something else small.” The driver then consents to the search. The agency holding the warrant declines to pick-up on the warrant at some point in this conversation.

The officer conducts the search and finds a crack pipe. The officer tells the driver that her honesty will decide whether she is released with a citation or jailed for it. The officer asks the driver if it’s hers and the driver states that it is. The driver is then issued a citation for possession of paraphernalia.

To me this is bad all around. I feel that the consent is bad based on a promise of leniency (actually a lie of leniency) and the admission of ownership is coerced.

Am I crazy? I think this bad policework at best and unethical/immoral at worst.

[blues]

I have a problem at the point that he tells the subject that he's not concerned with a crack pipe but then offers one of two outcomes afterward...citation or jail.

(I've had guys give consent which ended up in seizure of multi-kilos. When I asked if they didn't think I'd find the dope or triple beam scale they just kind of shrugged it off...like it was a roll of the dice.)

When a consent search is conducted, with or without a signature, the rule in my own book was to keep one's word and get the job done.

On the other hand, I had no issues with outwitting a subject or defendant in the interview room once Miranda was given and the defendant agreed to "cooperate".

This case isn't the worst abuse of the consent process but it's nothing to brag to one's partners about, and had I been on scene I'd have expressed my dissatisfaction with the way it was handled.

[TC215]

I don’t have a problem with it until it gets to the part about the enforcement action for the crack pipe. He already told her that he wasn’t worried about a pipe or paraphernalia or whatever.

For consent to be valid, it has to be voluntary (not coerced) and from a person with standing/authority to consent. There are court cases out there about deception being coercion in regards to consent searches (US v Crisolis-Gonzales, US v Harrison).

Edit to add: I don’t have a problem with giving the ticket after she owned up to it. In drug work, we give people breaks all the time in exchange for honesty/cooperation in instances where we can exercise discretion (which is the vast majority of the time). The officer obviously had PC to charge, whether by citing or making a custodial arrest, with or without her admission.

[BehindBlueI's]

The statement would be suppressed. I didn't see any inclusion of Miranda, and I think it'd be fair to say a reasonable person would believe they are in custody while being questioned about an illegal item located in their vehicle, plus the coercion.

That said, the statement is probably completely irrelevant to the outcome of a trial and wouldn't come up anyway. Constructive possession for the sole occupant of a vehicle that belongs to them is an easy argument to make.

Now, that said, that's a shitty way to do business. If you tell someone you aren't going to hem them up over X, you find X, you hem them up over X you're putting your tryhard over your integrity. For a paraphernalia arrest. Who gives a shit? It's a crack pipe. Now if you need them for a witness or use them as a CI for something that matters, you've shown you can't be trusted and by extension your department/police in general can't be trusted. For a crack pipe.

[GuanoLoco]

>> The officer explains that he will not search the car, but he’s not out screw her and he’s a man of his word. The officer says, “I’m not concerned with a crack pipe or chore boy or something else small.

Officer finds crack pipe and offers citation or jail as the options. Surprise! The officer is suddenly unwilling to use previously implied ‘discretion’ to overlook it and starts a second “honesty’ game.

I would argue that the officer is not a man of his word and the person gving consent is equally naive.

[MI Law]

Now, that said, that's a shitty way to do business. If you tell someone you aren't going to hem them up over X, you find X, you hem them up over X you're putting your tryhard over your integrity. For a paraphernalia arrest. Who gives a shit? It's a crack pipe. Now if you need them for a witness or use them as a CI for something that matters, you've shown you can't be trusted and by extension your department/police in general can't be trusted. For a crack pipe.

I agree 100% The officer (and by extension, our department) will look absolutely silly if this video is played in court. The actual exchange between the officer and driver prior to the search was even more dramatic with him assuring him that he is a man of his word and isn't the type of person that says one thing and does another. It was all a lie and this is his way of doing 'business' a.k.a. getting stats with no regard of balancing if what he is doing is actually doing good or bad for the community. Our department will be burning so much credibility capital with the courts and attorneys if this case ends up going to trial.

[jnc36rcpd]

Back when I was a Law Enforcement Explorer any decades ago, I saw a Motorola training film in which the actors portraying cops do an illegal vehicle search despite the objections of the smarter of the two partners. When the trunk is popped open, the officers discover a bound and murdered corpse. After drawing revolvers on the driver, one exclaims "Call the sergeant!". Having spent most of my career and life as a sergeant, I fielded some of those calls.

The search in this case may or may not have been lawful. That said, why? Why would you bring a maybe lawful case to court for a crack pipe? Would it not be smarter to wait until an arrest was made or it was determined that the driver was not under arrest before diving into the intricate issues of a consent search?

The officer may or may not have felt he was being truthful with the suspect regarding leniency. Many offenders and cops consider a citation leniency compared to a full custody lock-up. There is validity to that. We return, however, to the "why" issues. Why risk creating restrictive court decisions when you could enforce the law and investigate crime with solid backing. There are times when you might need to push the limit (Terry frisks being my usual example), but a crack pipe?

I also agree with the argument to be honorable and truthful with our "customers". In retail, they say a happy customer is a return customer. In our business, unhappy customers are return customers. While we sometimes have to lie to bad guys, I don't see a reason to do so for a crack pipe lock-up.

I will confess that it is difficult to guide those who are hungry for stats. Hopefully, time and experience will show them that their way is not THE way.

[MI Law]

The search in this case may or may not have been lawful. That said, why? Why would you bring a maybe lawful case to court for a crack pipe? Would it not be smarter to wait until an arrest was made or it was determined that the driver was not under arrest before diving into the intricate issues of a consent search?


You nailed it...what's the point? To provide context, I was the sergeant reviewing the report and citation. I kicked it up to the LT with a recommendation that the citation get voided. The other sergeants said I was crazy because that would open the department up to liability because we were admitting an illegal search was conducted. I just shook my head. That's the whole point of a supervisor reviewing reports! Sometimes mistakes are made and they need to be corrected. I feel that they really misunderstand vicarious liability, despite all of the training that we get on it.

I was told by the LT that the driver never really said "no" after saying "yes" the first time. Maybe it's just me but I don't think consent for a vehicle search is somewhere we should be going to court and splitting hairs over.


https://www.youtube.com/watch?v=Yp3TQf2xDc8

[fwrun]

At both agencies I have worked for, it is SOP to detain the individual until the warrant is confirmed if one shows in the system. If the suspect was detained in the back of the police vehicle, this search is too close to coercion to be worth it (from what you have told me, anyways).

Regarding BBI’s comment on the suspect’s admission of guilt, it would highly depend if the officer had already detained that suspect in cuffs in the back of the vehicle, vs outside the vehicle, vs not at all, and whether or not the officer thoroughly explained the suspect was or was not in custody. Miranda applies to questions asked in-custody, not questions asked while seized.

[PearTree]

I agree the situation described is bad policework and the officer based on what you said straight up lied to that female. But I'm not seeing anything that would lead me to believe anything illegal was done. Honestly who cares about a crack pipe? I've got more important stuff to deal with and enough paperwork as it is.

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[Hambo]

Now, that said, that's a shitty way to do business.


Honestly who cares about a crack pipe?

Really. It sounds to me like the officer needs a talk from sarge about how to do the job.

[BehindBlueI's]

Regarding BBI’s comment on the suspect’s admission of guilt, it would highly depend if the officer had already detained that suspect in cuffs in the back of the vehicle, vs outside the vehicle, vs not at all, and whether or not the officer thoroughly explained the suspect was or was not in custody. Miranda applies to questions asked in-custody, not questions asked while seized.

Cuffs or no, back of a car or no, the particular discussion of enforcement action after finding contraband triggers Miranda IMO. While those are certainly factors courts use to decide custody or not, accusatory questioning and if the person is free to leave at the end of the conversation are also factors. Questioning prior to finding the contraband and the officer's statement would be allowed under Berkemer v McCarty, but I think the officer went beyond what's allowable under "Berkemer" with the statement of "...will decide whether she is released with a citation or jailed for it." That indicates you aren't free to leave at the end of the conversation, particularly if you don't answer an accusatory question during a conversation initiated by police

[TC215]

At both agencies I have worked for, it is SOP to detain the individual until the warrant is confirmed if one shows in the system. If the suspect was detained in the back of the police vehicle, this search is too close to coercion to be worth it (from what you have told me, anyways).

Regarding BBI’s comment on the suspect’s admission of guilt, it would highly depend if the officer had already detained that suspect in cuffs in the back of the vehicle, vs outside the vehicle, vs not at all, and whether or not the officer thoroughly explained the suspect was or was not in custody. Miranda applies to questions asked in-custody, not questions asked while seized.

I don’t think it matters if she was in the back of the car or not, as long as she had a way to revoke consent. If we have someone consent that’s in the back of a police car, we leave the window down and an officer nearby. Courts have repeatedly ruled that a person in custody can give consent (but being in custody is a factor used to determine that “voluntariness” of the consent).

I also think Miranda was necessary. She was not free to leave, and the questioning was outside the scope of Berkemer (Berkemer v McCarty, US v Murray). If the officer had pulled a kilo of coke out of the car, Miranda would (should) have been read. It doesn’t change just because it was a crack pipe.


I agree the situation described is bad policework and the officer based on what you said straight up lied to that female. But I'm not seeing anything that would lead me to believe anything illegal was done. Honestly who cares about a crack pipe? I've got more important stuff to deal with and enough paperwork as it is.

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I would care. This time it was just a crack pipe. What happens next time when it’s something much more significant?

[WobblyPossum]

I think the lawfulness of the search can be argued either way. Since the officer specifically used the example of a crack pipe as something he wasn't concerned with finding and the subsequently found a crack pipe before taking enforcement action, a competent defense attorney could argue that the suspect's consent was only obtained through a promise of leniency and is invalid. On the other hand, the suspect was informed that she had the right to refuse the search and the officer told her if she refused, he would not search the car. If, for example, the officer had found a stolen handgun instead of a crack pipe, it would be hard to argue the consent to search was unlawful. I haven't heard of a ruling saying an officer specifically can't tell a suspect he's not concerned with minor little infractions to talk his way into a search for something bigger.

The suspect's admission that the found crack pipe was her's should be thrown out because she was not mirandized after the pipe was found during a conversation about possibly taking her to jail. At that time a reasonable person would believe they were in custody and the officer was questioning her in order to obtain an admission of guilt.

Lawful or not, it's bad form to blatantly lie about consequences to talk your way into a search for minor, piddly little nonsense like drug paraphernalia. He specifically told her he was not concerned with crack pipes and then initiated legal system proceedings for her possession of the crack pipe. The right thing to do would have been to use discretion and keep his word to the suspect by not charging her for the pipe. It sounds like she was cooperative through the whole process and wasn't being an ass to the officer. He's likely burned his credibility with her if he ever needs her as a witness and he's probably damaged the credibility of your agency with anyone she talks to about the incident.

I'd be surprised if the prosecutors go forward with these charges because the lawfulness of the search is in such question.

[GuanoLoco]

He's likely burned his credibility with her if he ever needs her as a witness and he's probably damaged the credibility of your agency with anyone she talks to about the incident.

People do dumb things every day, but such stories damage the credibility of more than just the officer and the officer's agency.

[txdpd]

Things are regional/local.

Around here the validity of that consent would depend on when the consent was asked for, when the warrant was declined and when the traffic stop ended. On a traffic stop, if consent was asked for prior to the warrant being declined, most courts around here would toss the search. The officer would be expected to end the detention and then reestablish contact in a non custodial encounter. If the warrant had been declined, the traffic stop was over, and then consent was asked for, it would be fine.

If she was the sole occupant of the vehicle and had care, custody or control of the vehicle and it's contents, then the officer can cite or arrest for the pipe. The admission of possession would not be admissible in court, since it would be a custodial statement and she did not appear to be mirandized. Regardless most courts around here would toss the pipe, unless the officer can reasonably demonstrate that she knew or should have known that the pipe was in the vehicle.

YMMV and things can be radically different from on county to the next.

[CraigS]

I am not and have never been a police officer so I don't really know the legality of the situation. But what I can say is I am real sure this story would get around and sure as heck isn't going to help police/community relations. Similar to the thought that problems w/ a product or business are heard by 10 people while kudos for a product or business are heard by 2 people(or whatever the numbers are). This would be heard by a 100 people while the cop helping someone will be heard by 2 people.