Wednesday, November 26, 2014

                           101 Things
                    An Author Needs to Know
                 About the Police and the Law

           The cop said it was in "plain view".          
                  What does that mean?

The plain view doctrine allows an officer to seize, without a warrant, what he considers to be evidence and/or contraband found in plain view during a lawful observation. 

So let's break that down. What is evidence?  It can be a physical thing or it can be the spoken word, but basically it is something that will establish a point.  Let's say you have an open bottle of alcohol in the car and you're pulled over for suspicion of drunk driving.  If the cop sees the open container, it will be seized as evidence that you were driving while impaired. 

And contraband is simple.  It's goods that have been imported or exported illegally. Drugs are a perfect example.

So you're pulled over on the highway by the police for speeding and the cop comes up to the window with his flashlight.  Can he look inside your car?  Yes.  With that flashlight?  Yes, again. This is considered a lawful observation. 

In order for him to seize something that is in plain view the courts apply a three-prong test called the Horton test. 
     1)  The officer has to be lawfully present at the place where the evidence is plainly viewed. (He's on patrol, he's in a lawful place on the streets.)

     2)  The officer has to have lawful right of access to the object.  That means the officer could not seize the evidence if he has to look/enter into a place in which you have a reasonable expectation of privacy.  Can he look in your trunk?  No, not without your permission.  Can he look in your handbag or the backpack in the rear seat?  NoYou could have a human head in there but you were speeding, so what does your trunk or the backpack have to do with it? Nothing.  Therefore, he can't poke around in there.
     3)  The incriminating character of the object has to be immediately apparent.  So, you've got a joint in the ashtray.  (I know, who has ashtrays these days, right?)  If the cops sees it while he's asking for your license and registration, you're in trouble. He will ask you to step out of the car and he will seize the contraband, which is now going to be evidence in your trial.

How about if you have a gun on the front seat?  Not illegal if you have the proper permits to carry in most states.  It is your responsibility to know when you have crossed a state line where the rules differ.  My driveway where I used to live in Massachusetts was 40 feet from the state border. So if I turned left I was in Connecticut.  Different set of regulations there.  Carrying a weapon that is accessible to passengers in a vehicle is not recommended.  If you are stopped by a police officer and the weapon is visible, cooperate fully with the officer's commands. When the officer approaches the window, tell him right away that you have a weapon in the car.  Do not make him nervous.  Do not joke around.  Do not make sudden moves or touch the gun for any reason. If the officer wants to see it, the officer will remove it himself. 


Chris said...

Another interesting blog, Jody. I'm just wondering, following up on that head in the back pack scenario, if the officer saw the blood dripping from the bag, even if it was zipped and could just contain a nice fresh rib-eye for the guy's tea, whether he has the right then to examine it. Would he question him, or would he immediately call for back-up and risk being made to look a fool if it was innocent?

The gun on the front seat in plain view... surely, even with a licence, he would be questioned as to why he had a lethal weapon beside him as he is driving along? Here, I'm pretty sure that even someone legally allowed to carry one, like a farmer for instance, or a member of a gun club, wouldn't be allowed to have it there ready to use. Our gun laws are very different, though, and the average citizen doesn't have one. So seeing one in plain view would arouse suspicion that the driver was planning to use it, just as it would if it was a machete lying there. A gun on the seat would trigger the armed response unit to be called to deal with the situation.

Are all your police officers armed as a matter of course? Or does that too depend on the state they're operating in?

Jody E. Lebel said...

@ Chris. If a police officer saw blood in the back seat dripping from the bag, (or any type of blood really) he would question the occupants in the car and ask to look in the bag. They don't care about looking foolish. Too many officers have been shot. Officer safety is first on every stop. If it's nothing, they have a laugh and go on with their day. If the owner/driver refused to let the cop take a peek, most likely the car and the people in it would be detained while the police go obtain a search warrant. The car would not be allowed to leave due to the blood in the car and the suspicious behavior or the operator of not allowing the cops to look. The search warrant would cite 'possible evidence of a crime' as the reason. So always double wrap your heads in heavy duty trash bags.

As far as the weapon, yes, the cop would want to know why it was there. Perhaps I just bought it and was transporting it home. Perhaps I'm on my way to a gun club for some target shooting. Maybe I have a license to carry because I carry money for my work and/or I drive through bad areas making deliveries. No sense having it in the trunk if I'm about to be robbed. Some states require the weapon to be accessible to fire only after three moves: open the glove compartment (or latched box) (1), remove from holster (2), and unlatch the safety. Laws vary from state to state. Texas is much more liberal than say Indiana.

All law enforcement officers in all states are armed. Even the detectives. Officers are NOT trained to shoot to maim. They shoot to kill.

Chris said...

Okay, I'll get some heavy duty bags for that next time I'm in B&Q.

It gives me the shivers to think of people driving around quite legally with guns at the ready 'just in case', but I suppose that's our two different ways of looking at gun possession here and there. Our police aren't routinely armed either, although I think they do have batons and maybe some sort of spray to defend themselves if needed. It's a very different set-up.

Thanks for answering, Jody.

Jody E. Lebel said...

@ Chris. It's like the Wild West over here. It sometimes gives me shivers. It's odd, too, in my mind at least, that this country was formed from British sensibilities, much of our law and government and systems were copied from yours, yet we veered quite a bit away from civility and still after all these years we behave very much like a child acting out. I have to wonder if we'll ever grow up. We used to be a great power, and I supposed in some areas we still are, but much of the world laughs at us now. And you can't blame them. You have to earn your respect. A lesson we over here need to think about.