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I agree that Gant changes it a little, but it does not make it much better. I even agree that searching for a license is pretty feathery, but it would be legal and I know some officers who have used even more feathery justifications.

But, you really need to read Gant (and all decisions yourself, since the articles reporting it may twist it a little. The exact wording of Gant is:

"Police may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest."

So, prior to Gant, the Kurtz decision would have allowed a search incident to arrest when you were stopped for running a red light. This is why I chose the license example though. There is no evidence to be found for the light, but my experience is that most people with warrants who say they do not have a license actually have it hidden in the car. This is even more true if the driver is a male and says he doesn't have a wallet. This makes it probable that I will find evidence of his name in the car to identify him. Yes, I would try to run him from his oral identification first, and then check this only if it doesn't work out or something doesn't check with the return. But, I am not sure that it would be required for the courts under this set of circumstances.

Overall, I think Gant is probably a good decision for citizen's rights (though you are right that Arizona seems to be disproportionally represented in these cases - starting with Miranda). I think Kurtz was wrong in the final result (jurisdiction could have been argued differently by the DA and a different result obtained) and it was a good decision in requiring probable cause. I am generally in favor of making police officers do their work more professionally and respect citizens rights more. But it does mean more criminals (both small and large) go free despite their known guilt.

Keith,

You got it. A traffic stop is an arrest. This has always been a real question for cops as some saw them as investigatory detentions and some arrests. I think allowing a Terry stop for a traffic offense based on suspicion is stretching that case way too far (without even getting into whether or not Terry was a good decision, just recognizing it for existing and what it said). When you make a traffic stop, what are you investigating? You either saw a violation or not, and seeing a violation is probable cause.

But, the Court of Criminal Appeals ruled that a traffic stop is an arrest in the Kurtz decision. The case was a DWI that was fought. The officer was from Plano and was on the wrong side of the street that is the border between Plano and Frisco. The CCP said that an officer did not have authority to arrest for class C traffic offenses outside his jurisdiction. No where in the CCP does it define and officer's jurisdiction. The court had previously ruled it was the county the officer was commissioned in.

Anyway, the CCA said the officer was wrong and threw out the case. The officer made the stop based on traffic offenses. The Transportation Code only gives authority to arrest for traffic offenses, not detain or investigate. Thus, a traffic stop for a traffic offense is an arrest, the officer was outside his jurisdiction, so the arrest was illegal. All evidence from the illegal stop was thrown out.

A lot of officers think this case was solely based on jurisdiction. They still think a traffic stop is a detention. I think the finding that a traffic stop is an arrest is critical and will turn out to have unexpected consequences. The justices were very specific that it was not a custodial arrest significant enough to invoke Miranda, but that it was an arrest.

Once you decide something is an arrest, it is going to have some consequences that people do not think of in advance. Think of searches incident to arrest for example. An officer stops a car and the driver says he does not have his license with him. I have made a legal stop and arrest. I can make a search incident to arrest for any evidence that might help prove the crime. I can then search the car for his license. And if I find anything else while I am searching, it is legal to use. That is just one example I can think of, in addition to the probable cause needed for a traffic stop. I really don't see why the need for PC gets so much argument. If you see a violation, it is pretty good PC, not just suspicion. But it is still a sensitive issue to a lot of police.

PappaGun wrote:

srothstein wrote:I disagree on whether or not police need probable cause for a stop. I think they do, and it was made even more clear in recent case law. But that is irelevant to this discussion, I just could not resist.

Border patrol does not need probable cause, or even reasonable suspicion for a stop if they consider it part of the border search. And under the 'flexible border" concept, this does not have to be at the border. I would say the Big Bend area is close enough to the border for them to be able to do this.

But the interesting part is that Border Patrol also has no legal authority to run traffic. They are not LEO's in Texas and cannot write traffic tickets. They can arrest under some conditions (like a felony in their presence). This is why there was no citation issued. If they accused him of a traffic violation, they were lying or abusing their authority. Your friend can complain to the are supervisor, but I doubt (unfortunately) that it will do much good.

Steve,
If you don't pull over for them, say in this case, what do you think they could or would do if they have no traffic authority?

I don't know what will happen to you, but they would call it in as a chase and get help. But the way I read the law, they are not an emergency vehicle and you are not evading arrest because they are not peace officers. By the strictest reading of the state law, you are good to go. I don't know if there are any federal laws that might apply, such as interfering with a federal agent during an investigation, etc. When I see them parked on IH-10 by Seguin (which is far enough from the border for me to want to question the flexible border idea) I keep thinking it would be fun to find out. But then I honestly say I don't trust the courts to agree with my reading of the law and could not afford to test it to find out. Maybe after I hit the lottery and can afford some really good lawyers.

I disagree on whether or not police need probable cause for a stop. I think they do, and it was made even more clear in recent case law. But that is irelevant to this discussion, I just could not resist.

Border patrol does not need probable cause, or even reasonable suspicion for a stop if they consider it part of the border search. And under the 'flexible border" concept, this does not have to be at the border. I would say the Big Bend area is close enough to the border for them to be able to do this.

But the interesting part is that Border Patrol also has no legal authority to run traffic. They are not LEO's in Texas and cannot write traffic tickets. They can arrest under some conditions (like a felony in their presence). This is why there was no citation issued. If they accused him of a traffic violation, they were lying or abusing their authority. Your friend can complain to the are supervisor, but I doubt (unfortunately) that it will do much good.