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Plain view PC

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November 05, 2003, 21:01
Plain view PC
I observed a known offender park and get out of his car. I waited until he went inside the store and then I decided to do a plainview search of the interior of his vehicle. To my surprise I saw a clear plastic sandwich type baggie in the center console containing a green leafy substance that I believed to be marijuana. I pulled back and waited for him to leave in the car. I never lost sight of the car and once the suspect returned and pulled off onto the roadway I initiated a traffic stop. The suspect offender subsequently turned over the contraband and he was placed under arrest and a search of the vehicle was conducted incident to an arrest and additional contraband was discovered along with firearms. I qualified myself in my report including the fact that I am my departments Evidence Technician Officer (ETO) and after all of this the asst. DA tells me that I didn't have PC for a traffic stop. (how do you know what you saw was marijuana and not oreagano). Is smell, sight or other five senses PC being shot down in appeals court? What are your takes. Thanks.I believe Its solid!
November 06, 2003, 18:37
Martin Peterson
Didn't know the 90th now had an assistant DA. Doesn't seem too seemly to ask prosecutors to second-guess or sit in direct judgment of each other on this forum and that will certainly not be the purpose of my response. But, here is my take on your facts: 1. Not clear why you state you made a "traffic stop", other than you allowed the vehicle to become mobile before you completed your investigation. 2. I guess the argument would be that you conducted a "Terry" stop or temporary investigation of specific criminal activity that you "reasonably" suspicioned was occurring. 3. Your reasonable suspicion was based on "known" character traits of the occupant of the vehicle and your earlier personal observation at a distance of a suspected contraband. 4. Those may or may not be enough articulable facts. I would not think your suspicions or conclusions as to the contents of the baggie need be confirmed to constitute "reasonable" suspicion. See e.g. Craven, 560 N.W.2d 512; Allen, 689 So.2d at 215-6; Burkett, 691 N.E.2d 1241; Barnes, 870 S.W.2d at 78-9. In Hillsman, 999 S.W.2d at 162, the court even said the officer had probable cause to seize suspected contraband and make an arrest when the officer had merely observed white rocks which he believed to be crack cocaine from outside a vehicle. 5. You do not state how the contraband was "turned over" to you for closer inspection. That process may involve some other legal issues.
November 07, 2003, 17:43
Terry Breen
Your seeing the baggie of marij. in plain view in the car gave you PC to stop and arrest the driver. It is legally irrelevant whether you arrest the crook when he returned to his car, or waited until he drove off and then stopped him on the road.

Upon stopping him and re-discovering the marijuana, you had a right to arrest him and to search his vehicle for additional marijuana. This search netted more contraband, which IMHO was legally seized.

I don't think the facts as stated presents a very difficult legal issue. I would have accepted the charges in a New York Minute.
November 07, 2003, 23:02
You see what appears to your trained and experienced eye to be dope in plain view in a car. This gives you probable cause to search the car pursuant to the automobile exception and seize the dope. Once you confirm your suspicion the dope is dope, you can arrest the defendant. In the alternative, you can simply arrest the defendant at the store for possession of dope, an offense committed in your view.

In hindsight, allowing the defendant to get back in the car and drive down the road a bit is just good police work, because it removes the members of the public at the store from a potentially dangerous situation, an arrest.

The prosecutor reviewing the file probably focused too much on your words "traffic stop" and the timing of the events. If you shuffled the facts around so that the defendant ran a stop sign, you stopped him, and saw the baggie, I bet your prosecutor would accept the case no problem. He/she is just trying to impose that "typical" pattern on atypical facts and it does not add up. Your prosecutor may also work in a court where the judge doesn't think it is right for you just to walk up and look into someone's car. (Such a judge, of course, would be wrong to attach legal significance to that act).

I don't think reasonable suspicion theories work as well as straight probable cause.
November 08, 2003, 01:09
Martin Peterson
Nice touch John. I still say I am more comfortable with reasonable suspicion- certainly that is present anytime there is probable cause. My bigger concern is the "I tot I taw a puddytat" basis for searching almost any car. Trained eyes aside, I would like an officer to have a little bit more info before breaking into at least some vehicles. I know all about the "I saw a growing marihuana plant through the window" cases; but do not all these cases have at least some other suspicious facts attached? But, yes, under the facts presented I would break down and say if the investigation revealed nothing more than Ron had to begin with, he could still search the car without consent, because his crook didn't realize what center consoles are for.
November 10, 2003, 14:15
Dunno Martin.

I guess you could say reasonable suspicion to stop the defendant and ask what's going on? Where are you headed? What's that on the seat? Oh really, I didn't know oregano came packaged in shrink wrap . . .
November 10, 2003, 17:11
I have to say I am uncomfortable giving out legal advice to private citizens and officers, particularly over a specific fact pattern, in a public forum. It is not possible to get all the facts here. In addition, a local elected DA and his/her staff are entitled to respect for their opinions. They have the right to exercise their discretion and decline to prosecute, even if the evidence meets the minimum for prosecution. Disagreement over those decisions is not likely to get resolved through public postings that generate public criticism.
November 11, 2003, 07:19
Tim Cole
I agree with John. This is primarily a forum for prosecutors. I happen to know that the DA office where the original poster appears to live does not have an assistant district attorney, so I am wondering if this person works in some other jurisdiction and lives in Breckenridge. In any event, postings that second guess one of our members on a decision anonymously are not appropriate. The issue could be couched in terms of a hypothetical without leaving the appearance of taking someone to task for a decision.
November 11, 2003, 22:10
Terry Breen
I see no problem with critisizing prosecutors in this forum. In any case, RonCop never ID'd the prosecutor or the office who refused his case. Indeed, since "RonCop145" is a nom de guerre, no one has any idea who the prosecutor was who nixed his case, since we don't know who RonCop is, or where he works. His query is therefore effectively a hypothetical.
November 12, 2003, 08:03
Tim Cole
Only if you don't know who the prosecutors are around the state, and I do. Maybe the forum should require that a person use their real name and profile. Like many of us do.
November 12, 2003, 08:24
rob kepple
I agree with John and Tim. We at TDCAA get calls from law enforcement every now and again, and many times they are looking for legal advice that conflicts with what their local prosecutor has said. A general debate on a fact issue is good, but not when the point is to "grade the paper" of a fellow DA -- without all the viewpoints.

What I have found is that the officers seeking advice often leave out very important details that are integral to the prosecutor's decision. Now, those details may not be important to the cop, but to the prosecutor they are crucial. that's why we never answer those questions "behind your back." We call you first, and help get the issue resolved.

Answering the officer's poll concerning an active here doesn't help resolve the issue. So, it can be an interesting debate on a hypothetical question, but dollare-to-doughnuts there is more to this story than Robocop is telling us....