Border Patrol Probable Cause

[WildBill]

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.

This is just ludricrous.

[Bullwhip]

What color are BP flashing lights? I think they're just blue, right? I think all REAL police lights in Texas are red & blue. Tim eto call 911 put on the flashers and keep driving slowly.

BP stopping people at checkpoints use this case, but it sounds liek a horrible case that should be overturned.

http://en.wikipedia.org/wiki/United_Sta ... nez-Fuerte" onclick="window.open(this.href);return false;

[gigag04]

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.

IMO after Gant in 2009, an officer would be making bad case law if he did so. "Searching for his license" is pretty feather-legged. With CAD and the ability to search the DL record either the person exists or they do not. I'm not sure I could articulate PC for a search of a vehicle for a DL after the subject was lawfully arrested. And thanks to stupid AZ and their consistent ability to put out bad SC cases for LE, with Gant we lost search incident to arrest of the vehicle.

I actually agree with the ruling, and can see the potential for abuse. It does however make my job more difficult.

The above is slightly of topic, but I'm curious if you would agree with my thoughts on the situation we face post-Gant?

[RoyGBiv]

Seems that Gant would preclude a warrantless search of the vehicle for a wayward DL...

http://en.wikipedia.org/wiki/Arizona_v._Gant" onclick="window.open(this.href);return false;

Arizona v. Gant, 556 U.S. ___ (2009), was a United States Supreme Court decision which held that the Fourth Amendment to the United States Constitution requires law enforcement officers to demonstrate an actual and continuing threat to their safety posed by an arrestee, or a need to preserve evidence related to the crime of arrest from tampering by the arrestee, in order to justify a warrantless vehicular search incident to arrest conducted after the vehicle's recent occupants have been arrested and secured.

......

In an opinion delivered by Justice Stevens, the Supreme Court held that police may search the passenger compartment of a vehicle incident to a recent occupant’s arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest.

Justice Scalia wrote a concurring opinion, "In my view we should simply abandon the Belton-Thornton charade of officer safety and overrule those cases. I would hold that a vehicle search incident to arrest is ipso facto “reasonable” only when the object of the search is evidence of the crime for which the arrest was made, or of another crime that the officer has probable cause to believe occurred."

[srothstein]

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.