The answer to "Are there rights when being questioned for drugs in your car"?

[alcohol kills]

No there isn't. I am reporting this as a FACT. With my unfortunate mishaps with the law and them taking my beautiful nug's of happiness, I know. here it is the full spectrum of our rights and freedoms from search's....


PROBABLE CAUSE

The Fourth Amendment has two clauses. The first states that people have a right to be protected from unreasonable searches and seizures, and the second states that no warrant shall issue except upon probable cause. The roots of the second clause -- the probable cause requirement -- lie in English and American colonial history. Prior to the framing of our Constitution by the founding fathers, the government had virtually unlimited power to believe, right or wrong, that any illegal items they were looking for would be found. In England, this all-purpose power took the form of what were called general warrants; in colonial America, they were called writs of assistance. To protect against the abuses inherent in this kind of power, the Framers added a probable cause requirement.

The probable cause requirement is, in many ways, more important than the reasonableness clause. Not all search and seizures require warrants (e.g., automobile searches, arrest in a public place), but the Supreme Court has interpreted warrantless searches and seizures as unreasonable unless preceded by probable cause. This means that as a general rule, most searches and seizures require probable cause.

It's an example of the procedural law's attempt to balance, or accommodate, competing interests. On the one hand, it protects from arbitrary intrusions into liberty and privacy, but on the other hand, it gives sufficient leeway to government officials by not being as strong of a standard as proof beyond a reasonable doubt. More leeway is granted to law enforcement under the standard of reasonable suspicion (see this Lecture on Stop & Frisk), and the standard of reasonableness under all circumstances used in school searches and sweeps. The Supreme Court has indicated that any exceptions to the probable cause requirement will be few in number. The Supreme Court has referred to its interpretation of probable cause as the "accumulated wisdom of precedent and experience."

DEFINITIONS

The precise meaning of "probable cause" is somewhat uncertain. Most academic debates over the years have centered around the differences between "more probable than not" and "substantial possibility". The former involves the elements of certainty and technical knowledge. The latter involves the elements of fairness and common sense. There's more adherents of the latter approach, but how do you define common sense. Supreme Court case law has indicated that rumor, mere suspicion, and even "strong reason to suspect" are not equivalent to probable cause. Over the years, at least three definitions have emerged as the best statements:

Probable cause is where known facts and circumstances, of a reasonably trustworthy nature, are sufficient to justify a man of reasonable caution or prudence in the belief that a crime has been or is being committed. (reasonable man definition; common textbook definition; comes from Draper v. U.S. 1959)

Probable cause is what would lead a person of reasonable caution to believe that something connected with a crime is on the premises of a person or on persons themselves. (sometimes called the nexus definition; nexus is the connection between PC, the person's participation, and elements of criminal activity; determining nexus is the job of a judicial official, and it's almost always required in cases of search warrants, not arrest warrants)

Probable cause is the sum total of layers of information and synthesis of what police have heard, know, or observe as trained officers. (comes from Smith v. U.S. 1949 establishing the experienced police officer standard)

There are of course, other definitions, and it's a fact of life in criminal justice that different judicial officials use different definitions. Judges will always have the last word on probable cause. Police will use whatever judicial official is available, preferred, or the court system may have a rotating duty roster for judges or magistrates to sit for nothing but warrants. The Good Faith Exception to the Exclusionary Rule protects the police to some degree in errors made by magistrates (where an appeals court rules that the magistrate signed off too leniently on probable cause). The Sixth Amendment also requires a person arrested without a warrant be brought before a magistrate without delay. This is called First Appearance, and it involves a judicial affirmation of probable cause. Many jurisdictions also still have something called the Preliminary Hearing, and it involves the determination of whether there are reasonable grounds to believe someone is guilty (not reasonable doubt, but jacked-up probable cause). Modernized court systems combine the First Appearance and Preliminary Hearing into one Probable Cause Hearing (eliminating the redundancy).

There are a few things from other areas of the law that have relevance for the law of probable cause. One of these is the area of privacy. A "search" is in many ways a violation of privacy, a quest for something. Therefore, the Katz definition of privacy (expectation of privacy) prevails and in many ways supplements the particularity requirement (searches cannot be exploratory in hopes of finding something; they must be calculated, looking for something specific). Under Katz, only things a person clearly expects or deems private are protected; anything on display or in a public place is not protected. The area of electronic surveillance is also relevant. States cannot generally give their officers more power than the federal government allows when it comes to technology, but there are loosened restrictions on consent and different definitions of private (e.g., email) under wiretapping law. A "seizure" involves a dispossession of a person's exercise of dominion or control of a thing; the detaining of their body in the case of arrest. The only things that should be seized, as a general rule, are items within Plain View or under the immediate control of a suspect (the Chimel Rule), but in some cases (under conspiracy, racketeering, and asset forfeiture laws), a person can be dispossessed of things faraway and distant (like Swiss Bank Accounts) if the items are instrumentalities or proceeds of the crime. The law of seizure generally recognizes two precedent-setting cases:

Brinegar v. U.S. 338 US 160 (1949) -- (Probable Cause to Arrest) -- provides details on how to determine if a crime has been or is being committed

Carroll v. U.S. 267 US 132 (1925) -- (Probable Cause to Search) -- provides details on the belief that seizable property exists in a particular place or on a particular person.

alcohol kills Reviewed by alcohol kills on 01-23-2007. The answer to "Are there rights when being questioned for drugs in your car"? No there isn't. I am reporting this as a FACT. With my unfortunate mishaps with the law and them taking my beautiful nug's of happiness, I know. here it is the full spectrum of our rights and freedoms from search's.... PROBABLE CAUSE The Fourth Amendment has two clauses. The first states that people have a right to be protected from unreasonable searches and seizures, and the second states that no warrant shall issue except upon probable cause. The roots of the second clause -- the Rating: 5

[The Colonel]

i didnt read all of it but i can tell you, i know first hand that you can tell a cop, "yes i have a problem with you searching my car" and go home free.

[Markass]

umm...if you aren't fucked up and there's nothing in plain sight, it's an illegal search, and I'm not going to allow that to happen. What I have is going to be hidden and if I am stoned, nobody's going to know that I am unless I tell them, and I most certainly am not going to tell a cop that. You have more rights when they're questioning you, buddy. The cops cannot waste your time..."officer, am I going to be detained? Because if not, I really need to get going." I'm way too effing stoned to have any desire to read all of the paragraphs. I don't care what they say, the cops aren't going to take advantage of my constitutional rights. I am not going to allow that to happen.

[higher4hockey]

the bottom line is, its there word against yours, and if you're fighting this in court, its someone that was caught with marijuana against a police officer. ie you lose. i tried to fight it on the illegal search and seizure...didn't work.

other than that, impressive post!

[MastaChronic]

the bottom line is, its there word against yours, and if you're fighting this in court, its someone that was caught with marijuana against a police officer. ie you lose. i tried to fight it on the illegal search and seizure...didn't work.

other than that, impressive post!

thats why everybody needs to either pack a tape recorder or a camcorder in their car

[Samwhore]

Never talk to cops, they are trained to get the truth out of you just say, "my mother always told me not to talk to strangers"

[alcohol kills]

Well truth be told, a cop can search anyone one's car or public property on a warrantless search siezure MEANING they don't have to get a judge to sign it or wait for your "lawyer" to arrive. If they want to search your car THEY WILL FIND A WAY i.e. dog searching outside of car, probable cause, bench warrant...

[Markass]

Well truth be told, a cop can search anyone one's car or public property on a warrantless search siezure MEANING they don't have to get a judge to sign it or wait for your "lawyer" to arrive. If they want to search your car THEY WILL FIND A WAY i.e. dog searching outside of car, probable cause, bench warrant...

Not if they're sitting there for more than five seconds trying to tell me a reason why they need to search...as I mentioned above, the cops don't have the right to pointlessly waste my time, and I'm not going to allow them to. If there's not anything directly in plain site, or they can't prove I'm intoxicated, I'm going to ask for my ticket and wish to be on my way..because I have somewhere to be.

[alcohol kills]

Not if they're sitting there for more than five seconds trying to tell me a reason why they need to search...as I mentioned above, the cops don't have the right to pointlessly waste my time, and I'm not going to allow them to. If there's not anything directly in plain site, or they can't prove I'm intoxicated, I'm going to ask for my ticket and wish to be on my way..because I have somewhere to be.

I'm just saying IF they want to search your car for whatever reason they give to use the broad word "probable cause", they will, some cops may not mess with you but IF they want they (shouldn't be able to) can!

[Markass]

I wouldn't say that probable cause is broad by any means...If he tries to make some bullshit up, I'm not going to go for it..and if you're smart, you won't. And I still strongly disagree. If they want to, and there's no legal reason, they're NOT going to. I'm very aware of my rights, and how things are supposed to work. The cops are going to be the last people that I let violate my rights.