"Gunfighting is a thinking man's game. So we might want to bring thinking back into it."-MDFA
Beware of my temper, and the dog that I've found...
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
Sorta around sometimes for some of your shitty mod needs.
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 would care. This time it was just a crack pipe. What happens next time when it’s something much more significant?
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.
My posts only represent my personal opinion and do not necessarily reflect the opinions or official policies of any employer, past or present. Obvious spelling errors are likely the result of an iPhone keyboard.
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.
Last edited by txdpd; 09-24-2018 at 06:26 PM.
Whether you think you can or you can't, you're probably right.
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.