If interrupted by LE while entering or leaving an incall location, we know to STFU after producing ID [if requested].
BUT, does LE have the right to search pockets or a small duffel bag which may contain personal and possibly incriminating items?? [Eg., condoms, lube, vibe, etc.]
OK... most of these legal questions like this one and the one under it would take two or more semesters of law school to really answer, but..
IN GENERAL, the Supreme Court has ruled that a police officer may take actions to ensure his/her safety when coming in even casual contact with an individual. This includes things such as a pat-down (frisk) and even temporarily handcuffing the individual. Searching other items the individual has under his/her control such as bags/briefcases etc MAY get problematic if they do not secure permission to do so first. All you have to do is watch a few episodes of COPS and you see them bust idiots for narcotics they find in the course of such a frisk.
Huge difference. Crack cociane etc are illegal to possess; condoms, lube etc are not. OK, so you are on your way in or out of an appointment, LE stops you and attempts to question you.
1. Identify yourself
2. Otherwise STFU
3. If asked for permission to have your whatever searched, the answer is 'NO I do NOT consent to a search of anything.' Remember if they have Probable Cause, they don't NEED your permission to search. They will almost always ask for the permission anyway to make things simpler in court later; PC is debatable, your permission is not. Do not do them a favor by voluntarily giving up your rights. If they do not have PC, they can't continue the search and they know it. However they may do so anyway hoping to find something to use to get you to talk.
4. Repeatedly ask 'Am I under arrest?' and reply to any question with 'I want to talk to an attorney.'
When the cop starts trying to humiliate and embarass you by flaunting the condoms, lube, toys etc he/she found, the MOST I would respond with would be 'Its NONE OF YOUR BUSINESS why I have those things and I WANT A LAWYER.'
When they push you to explain why you are in a given location, essentially the same answer 'I don't have to explain to you why I am anywhere. Am I under arrest? I want a lawyer.'
Lets take this one step further. Assume you use MJ and have brought some along to share with your client/provider (stupid idea btw) and they find the MJ pursuant to a legal frisk. They have you and are going to try to flip you using it as leverage. Start talking and most likely you will end up booked for the MJ AND some other charges stemming from the date. Shut up and you may only get cited or booked for the MJ. Few jurisdictions get very upset about possessing personal use weight of MJ anymore, so take that bust like a man/woman and deal with it.
One final note. If LE really wants to, they can find something to cite/arrest you for even if its total BS. We all know that in minor cases (traffic tickets are the most obvious) the courts assume you are guilty just because the cop wrote the citation and you would have to prove yourself innocent, just the facts of life. I'd call the risk of some sort of harassment like that from LE part of the cost of doing business.
As the man says... sure as hell not a lawyer and I'm sure there will be counter-points to all above.
MVR
So would this be illegal search & seizure?
a lady get arrested for refusing money & sex,
no Miranda rights read
& LE go out & search her car(find nothing)
& also search purse finding (cell phone , lady hygiene products,lipstick)
& take as evidence
Thanks
Thanks for the thoughtful and informational reply, including the helpful MJ reference info.
One other thing you should continually do during such an encounter with LE is ask "am I free to leave now" and if they say yes - walk the fuck away and STFU. Police have to have probable cause to detain you, but if you stand there while they question (harass) you, the courts will say that is voluntary contact between you and LE. If you ask if you are free to leave they either have to say "yes" and you can walk away or "no" in which case you have been legally seized and all your constitutional rights cum into play right then and there.
This is always the general rule where warrantless searches are involved.
There are exceptions but none would apply on the barebone facts you gave us - the exception for pat downs applies only where the officer has a specific apprehension of danger. Now, if unknown to you but known to the officer the lady is selling Glocks on the side, maybe the officer could make the pat down case exception.
Or maybe he could make the exception if he knows your last name is Dillinger.
But otherwise -unless you are still so excited from your date that the officer gives you the old Mae West line - LE would not have a right to conduct a warrantless search.
..but all the officer has to do is SAY they had some reson to fear for their safety. Its really not debatable from that point. And yes this IS a tool they can misuse to inciminate or intimidate you.
MVR
such a warrantless search. And the answer here is clearly "no," regardless of what a rogue officer may do or say to the guy.
If he just "says" he had reason to fear for his safety, searches the guy, finds drugs, and then arrests him, guess what happens? In 48 hours the officer must file a sworn affidavit or maybe testify depending on the state procedure articulating a specific reason that made him fear for his safety so as to justify the pat down, search, and arrest.
If the neutral magistrate is not convinced the reason is valid, the arrest and search get thrown out right there. If it passes the magistrate, the defendant can still challenge the arrest at trial and have a judge decide.
So while i understand your point in terms of what actually happens when a free citizen comes into contact with LE, there are many built in safeguards to prevent abuse.
Unfortunately this is the real world.
There is no 'neutral' arbiter watching the cops in the corridor of a 'by the week' hotel to safeguard your rights.
The issue really reamins how to deal with LE in the situation. So they get badge heavy and make a questionable search, what are you going to do about it? Protest? Ok. Ask for an attorney? Fine. But in the bottom line, they have the power and the issue is to avoid having to go to court later and TRY and prove they were out of line at the time. And I'm sorry, 90% of the jurists presiding over cases of this nature ARE going to side with LE 90% of the time. Do the math on that one.
The bottom lines remain the same.
STFU
Ask for an attorney
Ask if you are free to leave
Ask for an attorney
Ask if you are free to leave
Ask for an attorney
Ask if you are under arrest
Ask for an attorney
Stand your ground about it being none of their business why you are there nor why you have condoms etc with you.
Ask for an attorney
MVR
Compendium, the Bible of search and seizure law. I don't know if Mr. Bell is still around, but he used to write very funny commentaries on the cases.
I now wonder whether it would be beneficial to try to tape [cellphone feature] surreptitiously.
This would document one's silence during police questioning, as well as his denial of permission to search, etc.
I'm certainly not a lawyer, but I'm under the impression that recordings are generally not admissible in court unless the person being taped has been informed that it is happening.
varies according to each state. Many states do permit recording of oral conversations to which you are a party; recording of conversations to which you are not a party is generally prohibited. Other states require two party consent and provide for civil as well as criminal remedies. Some states except recordings made where there is no expectation of privacy. There is also a federal wiretapping statute governing interstate recordings.
Whether a tape once made is admissible in court is a completely different question.
But the whole idea of trying to record a conversation with LE is a really bad one bc once you start to reach into your pocket to turn the recorder on you put yourself at great risk. At a minimum this might give police cause to a pat down.
The police are not going to frame you – just be quiet and go on your way.
Now exactly how are you going to turn this recorder ON so the officers don't notice it?
Going fumbling in your pocket is a great way to kiss the pavement and wear bracelets.
I must admit that having a recorder in your hand and starting it BEFORE LE starts talking to you and THEN telling them 'By the way, I'm recording this' might be humorous. If the cops are ethical, you have about neutered them. If they aren't, they have to really push the envelope by taking it away from you, stopping it, erasing what had been recorded.
MVR
good point VON
If you make a habit of walking with cell in hand(safety reasons) in case if mugging or parking lot crime etc...Could one push the record button anytime someone stops you? maybe practice this...
and if they are cops , you could say this is being recorded????
Telling them you are recording the conversation does two things
1. Clairifies the legality of recording the conversation, however I believe it is only illegal to record TELEPHONE conversations without advising the other party. In Nevada, only ONE of the parties has to consent btw. I personally have taken a running tape recorder into a unit commander's office in my pocket 'just in case' at least once.
2. Its a huge 'shot across the bow' that would force them to behave as per the law and department policy.
A couple of other things, it could change the subject for a bit altogether. If they madea an issue of you recording the conversation, then fine, conversation over. Gives you a reason to STFU and tell them you don't want to talk at all unless you can record what is said or your lawyer is present. It would definitely be a curve ball on the inside corner of the plate for them - not a situation they are at all used to encountering.
MVR
I can just imagine the look on their face:
"Hope you don't mind me recording this conversation"
Well, not to throw any shots across the bow, but I find myself saying WTF are you thinking? I "assume" the objective in any LE encounter is to leave the encounter and not talk your way into a set of braces either by what you say, or what you do. So, why on earth would anyone want to provoke LE from the very beginning of the encounter. Seems to me you are surely at the very least, cause them to believe that you are guilty of something and thus cause them to go looking for it. Or, even if their original suspicion is not substantiated, perhaps you will cause them to pull some other charge out of their bag of tricks. Or, maybe they decide to take you in on a very weak case just to cause you some grief knowing full well that the charge would be dropped. Sort of reminds me of stirring up a hornets nest, and for what?
But the point is that you STFU and do not even THINK being 'cooperative' will get you out of trouble. Talking, no matter what you say, no matter how innocent you THINK you are, can only dig you into a hole once LE twists what you said.
MVR
Yep, my comment was only related to the notion of the recorder.