rights violated during vehicle search

[Wilber]

I just can't see what is so damned difficult about getting a warrant when faced with circumstances that decades of case law tells you that you need a warrant. Surely the police realize that when a judge tosses out evidence for failure to get a warrant that the judge is telling them to get a warrant next time right? The car search issue has been resolved a thousand times over in the exact same way...BUT THE POLICE KEEP SEARCHING WHOLE CARS WITHOUT WARRANTS!!!!! And then they sit back in awe and amazement when their evidence gets tossed?

So are saying if a police officer stops a car for a valid reason and during the search finds six other things that he thinks are illegal but not related to the reason he stopped the vehicle he should have to keep applying for separate warrants for each item as he comes across them?

[August1991]

With the prevalance of video , in public, on the front of cop cars, in peoples personal cars , we are seeing first hand that rights are being abused. Plenty of "things" I used to scoff at , ie " I was abused"..."my rights were violated" as being false I have come to understand that they likely were.

You are referring to police who abuse their power to intimidate. I am talking of police not allowed to use their power to find evidence. I see a difference.

So, on this board Ezra Levant is a venerable hero for strictly exercising his right to free expression and demanding that the state take no step whatsoever to infringe upon that right, but I am a loony, leftist lawyer for advocating a strict exercise of my right to be free from unreasonable search and seizure by that very same state?

In the case of Levant, several citizens are abusing the powers of the State to harass a citizen.

I am truly astonished at how few people seem to give a shit about their right to be free from armed state officials intruding on their personal privacy.

Ask anyone who has flown on an airplane recently. Or ask any corporate officer or investor who has to complete endless regulatory forms.

If the choice is between the inconvenience of being stopped every so often for a check as opposed to letting some hoodlum off on a technicality, most people would accept the inconvenience.

We all accept considerable intrusion into our private lives when we complete a mortgage application or apply for a job requiring a security clearance. We are forced to divulge all kinds of personal information to the tax authorities.

I cannot think of any circumstance where I would consent to an armed state officer searching anything of mine.

At an airport?

I just can't see what is so damned difficult about getting a warrant when faced with circumstances that decades of case law tells you that you need a warrant. Surely the police realize that when a judge tosses out evidence for failure to get a warrant that the judge is telling them to get a warrant next time right? The car search issue has been resolved a thousand times over in the exact same way...BUT THE POLICE KEEP SEARCHING WHOLE CARS WITHOUT WARRANTS!!!!! And then they sit back in awe and amazement when their evidence gets tossed?

I suppose a warrant is a check on police power.

Ultimately, how do we know that the police are not abusing their power? That is, we want the police to search people but we don't want them to search everyone - that would be too costly.

It still strikes me as wrong that if the police find unrelated evidence in the process of a search, that the evidence is not admissible. This is a recent (1920s) change to (American) evidence law and I wonder whether it was connected to prohibition. It is the Left that champions this rule under the guise of "individual freedom". Well, individual freedom also includes the idea of living in a civilized society free of thugs and criminals.

I'm not surprised that the Left favours State intrusion into personal matters when it's a question of taking someone's wealth but the Left objects to State intrusion when it concerns matters of personal morality.

Edited March 1, 2008 by August1991

[eyeball]

Ultimately, how do we know that the police are not abusing their power?

Surveillance cameras. Every cop should be wired with a camera and microphone. The same goes for politicans for the same reason. There's no other way to know for sure and the cost of not knowing is becoming too much of a burden to society.

[Wilber]

I've tried to answer before that it does matter what evidence is found as a result of the Charter breach because the final part of the test is a balance of whether exclusion or admissibility would bring the greater disrepute to justice. So, the severed head in the bag might be allowed in where the piece of crack would be excluded.

So you admit that a judge making a personal value judgment as to what criminal activity is admissible does in itself bring disrepute to justice. The only thing in question is the degree.

Edited March 1, 2008 by Wilber

[Alta4ever]

There is a very simple solution for this, the person with the coke still broke the law and should be charged face trial and the convicted if there is the proof. A case should then be brought against the police who did not follow procedure and face disciplinary action. The criminal should never be let off on these kinds of technicalities.

[xul]

So are saying if a police officer stops a car for a valid reason and during the search finds six other things that he thinks are illegal but not related to the reason he stopped the vehicle he should have to keep applying for separate warrants for each item as he comes across them?

I think the key is whether the police had the rights to open the "crumpled paper bag" which contained cocaine bags--which obviously could not be used to contain liquor. I guess they did not have the right to open it according Canada law.

If the cocaine was in a glass bottle on the seat so police could spot it out directly, there would be no problem to convince the young guy of cocaine trafficking even if the police were searching the liquor. But if the police did not sure there were cocaine in the bag and they did not get a warrant to search the bag while the law requires them must have the warrant, the the way of they collecting evidence (cocaine) would be considered illegal. And I'm not sue how Canadian law would deal with such illegal collected evidence, but I'm sure Chinese law treats illegal collected evidence as void evidence and judge will ignore it---though Chinese judges does not always act according law, but usually in some nonpolitical cases they may judge by law and I have seen several similar cases which have roused extensive arguments between public, media and lawyers in recent years.

Edited March 1, 2008 by xul

[Wilber]

Another one

[Wilber]

I think the key is whether the police had the rights to open the "crumpled paper bag" which contained cocaine bags--which obviously could not be used to contain liquor. I guess they did not have the right to open it according Canada law.

I am aware of that but it doesn't answer my question.

[xul]

I am aware of that but it doesn't answer my question.

I agree the comment.

Makes one wonder when anyone they can find who wants to go into policing anymore is finally going to give up and just put in time till they can collect a pension.

I think if a man who believes his judgement could be beyond the law, he will not be a qualified policeman. And there are not only police was restricted by law, but alos everyone were restricted by law and every occupations were restricted by their bylaw or inner rules. A doctor who invented a new remedy to treat his patient also needs to get some kind of warrant from authority before he practices his invention though he believes the treatment would save his patient's life.

I admit that sometime laws and judges (of couse and lawyers) make us acting like fools. But one thing must be considered before we decide to get rid of them---without them, things might be going to more worse.

[guyser]

You are referring to police who abuse their power to intimidate. I am talking of police not allowed to use their power to find evidence. I see a difference.

I see absolutely no difference. The Police have powers, plenty of them, but sadly they go beyond them and get into trouble.

Cases dont get thrown out by lawyers. They get thrown out because of shoddy lazy police work. The have PC on a stop and they make stupid moves such as failing to get a warrant to go further. They have "plain sight " evidence , which in and of itself means they can detain the person. They can ask for permission to look everywhere in the car, if granted then anything they find is legal. Without the permission, then they must either get a warrant or make a deal with the person.

For instance, the open bottle of booze, if they ask the detainee .."let us search the rest of your car and this charge for booze will not materialize" Then the detainee has a choice (assuming not drunk), he can say yes in which the coke/crack will be found and he is deep trouble or say No and the Cops will then know he has something to hide. Time for copper to get a warrant. Its easy, but not followed too many times.

Ask anyone who has flown on an airplane recently. Or ask any corporate officer or investor who has to complete endless regulatory forms.

And that has exactly what to do with right to privacy? Nothing at all. Dont want to be searched, dont try and get on an airplane. It is a private business.

A corp officer is not subject to search of his body. His forms will do with fiduciary duties, his trades he makes and his corp governance.

If the choice is between the inconvenience of being stopped every so often for a check as opposed to letting some hoodlum off on a technicality, most people would accept the inconvenience.

August, with all due respect, if true then we have a society of morons. I actually do not believe that, except that most people wont think it through after pondering...nah wont happen to me.Should they realize the implications then they would not support it.

I believe it was Benjamin Franklin who said "it is better [one hundred] guilty Persons should escape than that one innocent Person should suffer".

And Pol Pot and Bismarck said the reverse. That tells me a lot.

We all accept considerable intrusion into our private lives when we complete a mortgage application or apply for a job requiring a security clearance. We are forced to divulge all kinds of personal information to the tax authorities.

Again, this is not a intrusion on ones privacy. It is a condition for a job or a mortgage.

It is the Left that champions this rule under the guise of "individual freedom". Well, individual freedom also includes the idea of living in a civilized society free of thugs and criminals.

It is not a right versus left thing. These are rights we all have regardless of political stripe.

I'm not surprised that the Left favours State intrusion into personal matters when it's a question of taking someone's wealth but the Left objects to State intrusion when it concerns matters of personal morality.

August, I have no idea where you are going here. No one likes the tax man. Left right centre loony bin, none of us like them.

Morality has nothing to do rights. You might like to make wine , lots of it. That is neither moral nor immoral. But should you try and sell it to your neighbours, then that is criminal. Nothing more nothing less.

FTA is bang on, and his frustration at the seemingly lack of concern some of the posters has with rights is shared by me. The cops, the courts, the whole system has checks and balances when used correctly can and does work. When the frontline guys abuse those checks and balances we see people walk. Good! Do the damn job right and everyone wins. Cut corners and we all lose.

It would be funny if it werent so damn pathetic when the police get up on their high horse and bemoan another person gettting off on a rights violation. Tell ya what Mr Police Chief, tell your command to do the job right and none of this will happen. Its called the law.

[moderateamericain]

No, you wouldn't have had the right to be pissed off. The fact that you broke the law supercedes what you see as your rights. How would you feel if you or a family member was a victim due to that line of thought?

Fact is, if a border guard finds the remnants of a joint in your ash tray, your car and your body will be searched. Why do you think someone out on the road, who could be a real danger to others on the road, should be given more consideration than someone entering the country? More consideration than the innocent people out on the roads?

Breaking the law and having the police search your car as a result is not "oppression;" it's the consequence of breaking the law.

I am a big beliver in protecting the consititution. Unless something is visible, (per your pot in the ashtray example) Then everyone should refuse to allow a police officer to search there vehicles. Protect your civil rights and exercise them whenever possible. And yes you can refuse an officer to search your vehicle without a warrant. The minute we start giving up are rights or letting the police walk over them the closer we get to totalitarinism. And it always starts with the simple laws. and yes i realize this is a canadian thread, however i dont know how your search and seizure laws work in canada.

Edited March 2, 2008 by moderateamericain

[guyser]

I am a big beliver in protecting the consititution. Unless something is visible, (per your pot in the ashtray example) Then everyone should refuse to allow a police officer to search there vehicles. Protect your civil rights and exercise them whenever possible. And yes you can refuse an officer to search your vehicle without a warrant. The minute we start giving up are rights or letting the police walk over them the closer we get to totalitarinism. And it always starts with the simple laws. and yes i realize this is a canadian thread, however i dont know how your search and seizure laws work in canada.

Damn, finally someone else gets it.

They do work much the same here as well. Plain sight evidence is PC enough to detain and get a warrant.

You are 100% right, you can refuse a search, and everyone should do so.

Let me ask you, do you feel the constitution gives the power to the people or the state?

[moderateamericain]

Damn, finally someone else gets it.

They do work much the same here as well. Plain sight evidence is PC enough to detain and get a warrant.

You are 100% right, you can refuse a search, and everyone should do so.

Let me ask you, do you feel the constitution gives the power to the people or the state?

Constitution puts limits on what the state can lawfully do. It also provides the people with the tools to protect there rights. We all live in a collective agreement in the states. Thats what all societies are really. We all agree to not kill eachother and if someone violates that then society punishes him or her for breaking that social agreement. At the same token, the people we assign the task of carrying out punishment should have limits put on them as to what is reasonable and lawful. Its a give and take for both sides. Yes I give up the right to not kill my neighbor but i gain the right to not be killed. Its abstract i know. My favorite quote all time is "People should not fear the Government, Government should fear its people"

Edited March 2, 2008 by moderateamericain

[guyser]

Constitution puts limits on what the state can lawfully do. It also provides the people with the tools to protect there rights. We all live in a collective agreement in the states. Thats what all societies are really. We all agree to not kill eachother and if someone violates that then society punishes him or her for breaking that social agreement.

Agreed!

And if we do not protect those rights, and our courts ability to do so , society will lose.

[moderateamericain]

Agreed!

And if we do not protect those rights, and our courts ability to do so , society will lose.

Yes we will, Look at examples like Soviet Russia, Post Civil war Vietnam, Cambodia, Nazi Germany, etc etc

[Wilber]

Yes we will, Look at examples like Soviet Russia, Post Civil war Vietnam, Cambodia, Nazi Germany, etc etc

You mean like we were for over a hundred years before the Charter of Rights?

[jbg]

Why bother

Makes one wonder when anyone they can find who wants to go into policing anymore is finally going to give up and just put in time till they can collect a pension.

Agreed. This is dumber than dumb. The operation of a car is not a right; it's a privilege. A car operating on a public highway should have little if any expectation of privacy.

[Wilber]

I am a big beliver in protecting the consititution. Unless something is visible, (per your pot in the ashtray example) Then everyone should refuse to allow a police officer to search there vehicles. Protect your civil rights and exercise them whenever possible. And yes you can refuse an officer to search your vehicle without a warrant. The minute we start giving up are rights or letting the police walk over them the closer we get to totalitarinism. And it always starts with the simple laws. and yes i realize this is a canadian thread, however i dont know how your search and seizure laws work in canada.

Take the last case I linked. The cops arrest the guy, they make him call a lawyer who in turn tells him to shut up. To my understanding all according to the Charter before this. He ignores the advice, yaps his head off and is convicted but the appeals court gives him a new trial on the grounds that the cops are at fault because their interrogator was smarter than the suspect. I should hope so. What's next, the cops form a special dumb squad of interrogators to conduct dumb and dumber "fair" interrogations?

By the way, I hope this guy isn't out on the street waiting for his next trial or there may be another dead 13 year old. Skin containing the victims DNA was found under his fingernails. Chances of it not being hers, 1 in 16 trillion according to expert evidence at the first trial. So much for "the test is a balance of whether exclusion or admissibility would bring the greater disrepute to justice"

I'm not trying to beat up on the legal system. Well not a lot anyway. For the most part I think they do a pretty good job. What I am trying to find out by posting these examples is when the bullshit stops and sanity kicks in. FTA says he doesn't know. All he can come up with is "the test is a balance of whether exclusion or admissibility would bring the greater disrepute to justice" which is purely up to whatever a particular judge decides at the time and judges can't even agree because they keep overruling each other, yet when some cop can't figure out where the goalpost is going to be six months ahead when his case comes to court, or two years later when the appeal is finally heard, some lawyer calls him a dummy and says he should know better.

[guyser]

Agreed. This is dumber than dumb. The operation of a car is not a right; it's a privilege. A car operating on a public highway should have little if any expectation of privacy.

My jaw just dropped. Of all people you post this ?

Did you not swear to uphold the Constitution and the Bill of Rights? (no one is saying the operation of a car is a right)

The fourth amendment is specific , as you well know.

I am truly shocked that you would say this. May I be so bold to ask why?

[jbg]

My jaw just dropped. Of all people you post this ?

Did you not swear to uphold the Constitution and the Bill of Rights? (no one is saying the operation of a car is a right)

The fourth amendment is specific , as you well know.

I am truly shocked that you would say this. May I be so bold to ask why?

At one time Fourth Amendment analysis revolved around the concept of a "zone of privacy". Then, around 1964 the Supreme Court was confronted by a situation where someone was convicted of a crime based upon a wiretapped payphone. The Court struck down the conviction, saying that the Constitution protects "people, not places". In my view that analysis was problematic, since if someone had the same expectancy of privacy in a payphone as in a home, the home could shortly become as private as a payphone.

I believe seriously that a person's "home is his castle" but when in public, a person has much less expectation of privacy. The roads are heavily regulated, since they are public, shared facilities. I believe that vehicles, and containers carried about in public generally, should be subject to search under relatively leniet conditions. After all, what is a car bomb? A car the terrorists decide to detonate in public.

[guyser]

I believe seriously that a person's "home is his castle" but when in public, a person has much less expectation of privacy. The roads are heavily regulated, since they are public, shared facilities. I believe that vehicles, and containers carried about in public generally, should be subject to search under relatively leniet conditions. After all, what is a car bomb? A car the terrorists decide to detonate in public.

I agree that one has less expectation of privacy, but that does not extend to the state looking through "property" of ones own, including a car without PC or a warrant.

As for lenient conditions, that already is assumed. PC or a warrant. Cops can and do have many tools at thier disposal to pull one over in a car. One minor violation and you can be lit up. Plain sight exposure...smells...nervous occupants.....

I dont believe you would want random searches done on any whim ....do you?

[Wilber]

As for lenient conditions, that already is assumed. PC or a warrant. Cops can and do have many tools at thier disposal to pull one over in a car. One minor violation and you can be lit up. Plain sight exposure...smells...nervous occupants.....

But any evidence they find can be excluded according to a particular judges interpretation of the Charter according to how he feels it meets the test of "a balance of whether exclusion or admissibility would bring the greater disrepute to justice". Stop a car for speeding, see an open container of liquor, look farther and find a bomb or a ski mask and an Uzi. Too bad.

[jbg]

I agree that one has less expectation of privacy, but that does not extend to the state looking through "property" of ones own, including a car without PC or a warrant.

As for lenient conditions, that already is assumed. PC or a warrant. Cops can and do have many tools at thier disposal to pull one over in a car. One minor violation and you can be lit up. Plain sight exposure...smells...nervous occupants.....

I dont believe you would want random searches done on any whim ....do you?

I'm not sure what "PC" is. However, I can be sure that given the surfeit of vehicles on the road, the cops wouldn't search any vehicile for no reason at all. Given that most people are conservative with their time, I'm sure a cop wouldn't seach under a seat, or a glove compartment, unless there was some d@mn good reason to. I'd trust a police officer's worldly experience any day in determining who to search.

Let's put it this way. If they subject an uptstanding pillar of the community to search, would that person mind it? Hardly. It would make them feel safer.

[eyeball]

As far as I'm concerned any government that takes responsiblilty for selling alcohol that also assumes the right to prohibit drugs is demonstrating a clear lack of any moral or ethical background for doing either.

This underscores the need to blunt the power of the police/state at every opportunity and I cheer every time they lose cases stemming from their misperception of what constitutes a person's rights.

[FTA Lawyer]

But any evidence they find can be excluded according to a particular judges interpretation of the Charter according to how he feels it meets the test of "a balance of whether exclusion or admissibility would bring the greater disrepute to justice". Stop a car for speeding, see an open container of liquor, look farther and find a bomb or a ski mask and an Uzi. Too bad.

But this example of yours is the whole bloody point!!! Stop a car for speeding, decades (and really, I'm not making that up) of case law tells the cop that he can look into the car and take note of anything that can be seen in plain sight (your open container of liquor).

That motorist is now going to get both the speeding ticket and the open liquor ticket.

The "look farther" part is where you don't seem to get it. What is the cop looking farther for? He has no lawful authority to do a complete search of the car! Thousands of cases all say the same thing...without a warrant, the cop CAN'T SEARCH BEYOND WHAT HE SEES IN PLAIN SIGHT...to do so is an illegal search.

If you have reasonable grounds to believe that a further search is required, then you explain those reasonable grounds to a justice and that person will either grant you or deny you a warrant.

Just because cops want to unlawfully invade citizens privacy and search their wallets, cellphones, glove boxes etc. and just because you don't seem to have any problem with them doing that, doesn't mean they can.

The whole balance of exclusion vs. admissibility is done in the remedy section of the Charter...that is, if you don't want to find yourself facing the balancing because you think it is too subjective THEN DON't BREACH THE PERSON'S RIGHTS and the balancing act never comes into play.

Get a warrant, get the evidence, no breach, no balancing, no "technicality" defence.

It really is that simple.

FTA