McLaughlin v. Commonwealth
June 2, 2006 2:43 PM Subscribe
Cop stops car and sees a gun and home-burned CDs in the car. The CDs made him suspicious so he searched the car for more pirated CDs. Was this a proper search?
(pdf version).
From the linked document: "We (the judges) agree that the
police did not have probable cause to search the vehicle. Therefore, we reverse the conviction. "
posted by pierrepressure at 2:48 PM on June 2, 2006
police did not have probable cause to search the vehicle. Therefore, we reverse the conviction. "
posted by pierrepressure at 2:48 PM on June 2, 2006
Thin cases and crappy printed out covers.
Also, note that it was a 2-1 decision.
posted by smackfu at 2:54 PM on June 2, 2006
Also, note that it was a 2-1 decision.
posted by smackfu at 2:54 PM on June 2, 2006
I wonder what he would have done if there was an mp3 player in the front seat?
posted by Mr_Zero at 2:58 PM on June 2, 2006
posted by Mr_Zero at 2:58 PM on June 2, 2006
Also, the driver had a peg leg, eye patch, and a parrot on his shoulder. He showed symptoms of scurvy and ended every sentence with, "Yarrr."
posted by mullingitover at 3:03 PM on June 2, 2006
posted by mullingitover at 3:03 PM on June 2, 2006
I find it interesting that the disenter seems to intentionally ignore the primary reasoning of the majority ruling, which was that regardless of wether the CD's seemed likely to be bogus, they had to have probable cause to believe that the CD's were intended for sale/distribution for the applicable law to be used.
posted by nomisxid at 3:05 PM on June 2, 2006
posted by nomisxid at 3:05 PM on June 2, 2006
It was noted in the full report that the peg-legged driver sang his Yarrrr's, proving him to be a musical pirate, but not, alas, a music pirate.
posted by craven_morhead at 3:07 PM on June 2, 2006 [2 favorites]
posted by craven_morhead at 3:07 PM on June 2, 2006 [2 favorites]
craven_morhead: It was noted in the full report that the peg-legged driver sang his Yarrrr's, proving him to be a musical pirate, but not, alas, a music pirate.
Gold. Absolute gold.
posted by RobertFrost at 3:10 PM on June 2, 2006
Gold. Absolute gold.
posted by RobertFrost at 3:10 PM on June 2, 2006
...no facts in the record suggest the CDs were possessed "for the purpose of sale, rental or transfer," and thus in violation of Code 59.1-41.4. Likewise, no facts in the record indicate the officers either believed or had any reason to believe the CDs were possessed for one of those purposes. The CD cases the officers saw are somewhat scruffy and scratched. None of the CD cases or individual CDs appear to be newly acquired or to have any of the usual indicia of items being held for sale. They contain no pricing labels, no cellophane wrapping, no boxes, and no customer lists. None of the CDs were duplicates of others. Indeed, the officer testified that the forty CDs seized "were all different." These facts indicate the CDs were possessed for personal use instead of sale, rental, or transfer... Many of the CDs have words handwritten on them in black ink, such as "Da Band," "JAZZ," and "SLOW JAMS 3."
Exactly. It would be one thing if there had been a boxful of neatly and newly-burned discs with price labels sitting there - that could be probable cause that something crooked was going on and would justify opening up the trunk to see if there were more of these. But it's ridiculous to assert that a few (obviously) homemade mix CDs spread out on the seat and floorboards should be enough to justify a further search. Thankfully two of the three appeals judges realize this, the dissenter seems pretty clueless and overly narrow in his "only plausible innocent explanation" logic train.
(Now this is the kind of 'legal' post that's interesting, not a glut of legal-scholar essays from SSRN.)
posted by SenshiNeko at 3:14 PM on June 2, 2006
Exactly. It would be one thing if there had been a boxful of neatly and newly-burned discs with price labels sitting there - that could be probable cause that something crooked was going on and would justify opening up the trunk to see if there were more of these. But it's ridiculous to assert that a few (obviously) homemade mix CDs spread out on the seat and floorboards should be enough to justify a further search. Thankfully two of the three appeals judges realize this, the dissenter seems pretty clueless and overly narrow in his "only plausible innocent explanation" logic train.
(Now this is the kind of 'legal' post that's interesting, not a glut of legal-scholar essays from SSRN.)
posted by SenshiNeko at 3:14 PM on June 2, 2006
Um...gun? Unless it’s ok in Virginia to carry a pistol in your car. I dunno. But if it is the search is garbage.
“essentially any cop that knows what he's doing can find a reason to search your car”
Yeah, and rulings like the appeals judge made are why.
- from the linked doc (appeal):
“Police officers, therefore, need not be "possessed of near certainty as to the seizable nature of the items."... Thus, the mere possibility of a wholly innocent explanation does not end the probable cause analysis.”
What crap. I get the “trained police officer” end of it. If they look like ripped off CDs ok. But unless he’s got a bunch of duplicates, there’s no evidence he was trafficking in them. So no real PC. You can bust him for the CDs, but it’s not a uniform substance like coke or dope. If he had more CDs than he’d have for personal use then maybe. But if any illicit act is PC for searching the car, why not no seatbelts?
The hard and fast of it is they’re letting the odds rule the situation. Which is great for law enforcement.
But if I’m in VA and I’m shlepping a bunch of poorly written on, thin cased and blurry labeled data CDs in my car, my company is going to be pissed off if not only am I late because they searched my car, but the data is sitting in a police impound.
posted by Smedleyman at 3:14 PM on June 2, 2006
“essentially any cop that knows what he's doing can find a reason to search your car”
Yeah, and rulings like the appeals judge made are why.
- from the linked doc (appeal):
“Police officers, therefore, need not be "possessed of near certainty as to the seizable nature of the items."... Thus, the mere possibility of a wholly innocent explanation does not end the probable cause analysis.”
What crap. I get the “trained police officer” end of it. If they look like ripped off CDs ok. But unless he’s got a bunch of duplicates, there’s no evidence he was trafficking in them. So no real PC. You can bust him for the CDs, but it’s not a uniform substance like coke or dope. If he had more CDs than he’d have for personal use then maybe. But if any illicit act is PC for searching the car, why not no seatbelts?
The hard and fast of it is they’re letting the odds rule the situation. Which is great for law enforcement.
But if I’m in VA and I’m shlepping a bunch of poorly written on, thin cased and blurry labeled data CDs in my car, my company is going to be pissed off if not only am I late because they searched my car, but the data is sitting in a police impound.
posted by Smedleyman at 3:14 PM on June 2, 2006
/he's letting - should be.
Poor reasoning by a judge irritates me...’cause what else are they there for?
posted by Smedleyman at 3:17 PM on June 2, 2006
Poor reasoning by a judge irritates me...’cause what else are they there for?
posted by Smedleyman at 3:17 PM on June 2, 2006
Given that just about everyone I know now uses burnt CDs (copies and mixes of originals, of course) in their car, I'm surprised this wasn't resolved previously. Especially in the desert, heat will mangle your CDs if you leave them in the sun.
posted by SirOmega at 3:29 PM on June 2, 2006
posted by SirOmega at 3:29 PM on June 2, 2006
It's disgraceful that it even had to be appealed - I'm glad to see that the original judge had the average grandpa's understanding of technology.
posted by Optimus Chyme at 3:29 PM on June 2, 2006
posted by Optimus Chyme at 3:29 PM on June 2, 2006
Alright now, no puns about the prosecution's case being thin.
posted by pierrepressure at 3:30 PM on June 2, 2006
posted by pierrepressure at 3:30 PM on June 2, 2006
Actually, SirOmega, I've never had a CD - original or otherwise - melt or warp in the heat, even in a 190 degree car interior. The cases melt at a much lower temperature but CDs are very, very tough.
posted by Optimus Chyme at 3:32 PM on June 2, 2006
posted by Optimus Chyme at 3:32 PM on June 2, 2006
I've had cassette tapes melt and warp in my car, and I wouldn't want to take the chance with my US$15-20 CDs.
posted by Songdog at 3:52 PM on June 2, 2006
posted by Songdog at 3:52 PM on June 2, 2006
If a cop has probable cause to stop you, he can pretty much find probable cause to search your car.
Is probable cause enough to justify a search?
The 4th amendment states: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The way I read that is probable cause is required in order to get a warrant, at which point you can search or sieze. It doesn't appear to authorize warrantless (unreasonable) searches to me.
posted by knave at 3:53 PM on June 2, 2006
Is probable cause enough to justify a search?
The 4th amendment states: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The way I read that is probable cause is required in order to get a warrant, at which point you can search or sieze. It doesn't appear to authorize warrantless (unreasonable) searches to me.
posted by knave at 3:53 PM on June 2, 2006
OC, you are lucky. I've had some CDs go melty over a lot less. More of a curiosity to me are all the people I see with visor CD cases...seems like for a burnt CD especially, the UV would be more damaging than the heat.
posted by nomisxid at 3:53 PM on June 2, 2006
posted by nomisxid at 3:53 PM on June 2, 2006
A method cops have to get into your car in Texas is to "examine the inspection sticker" While inside the car, the cop will feel under the seats open up the glove box, whatever.
But you can say no. But then you're being suspicious. And you're also not being obedient to authority.
On a CD-R in my car I have a CD with a handwritten label containing Jay-Z's 99 Problems
The disk also has Cartman as a cop saying "Respect my authoritay"
posted by birdherder at 3:58 PM on June 2, 2006
But you can say no. But then you're being suspicious. And you're also not being obedient to authority.
On a CD-R in my car I have a CD with a handwritten label containing Jay-Z's 99 Problems
"Well, do you mind if I look round the car a little bit?"[I don't think the Jay-Z defense will hold up in court]
Well my glove compartment is locked so is the trunk in the back
And I know my rights so you gon' need a warrant for that
"Aren't you sharp as a tack, you some type of lawyer or something'?"
"Or somebody important or somethin'?"
Tah I ain't pass the bar but i know a little bit
Enough that you won't illegally search my shit
The disk also has Cartman as a cop saying "Respect my authoritay"
posted by birdherder at 3:58 PM on June 2, 2006
Well the obvious solution to this is that the RIAA just needs to hire their own mercenary police force, heavily-armed, to patrol the streets for potential pirates.
posted by papakwanz at 4:03 PM on June 2, 2006
posted by papakwanz at 4:03 PM on June 2, 2006
So do blank CDs now count as pirate paraphernalia? Time to ramp up the production of CD/DVD sniffing dogs.
posted by Tenuki at 4:08 PM on June 2, 2006
posted by Tenuki at 4:08 PM on June 2, 2006
My favorite answer to:
"Well, do you mind if I look round the car a little bit?"
is “Do you have the legal right to look around in my car without a warrant?”
Then there’s the “You don’t have anything to hide do you?” with variants.
And you can answer “I will comply with any *legal* order you give me. Are you ordering me to surrender my rights?”
Basically it’s salesmanship in reverse. You keep the officer answering “No” instead of saying “No” or appearing to say “No” yourself.
posted by Smedleyman at 4:15 PM on June 2, 2006 [2 favorites]
"Well, do you mind if I look round the car a little bit?"
is “Do you have the legal right to look around in my car without a warrant?”
Then there’s the “You don’t have anything to hide do you?” with variants.
And you can answer “I will comply with any *legal* order you give me. Are you ordering me to surrender my rights?”
Basically it’s salesmanship in reverse. You keep the officer answering “No” instead of saying “No” or appearing to say “No” yourself.
posted by Smedleyman at 4:15 PM on June 2, 2006 [2 favorites]
I keep a copy of the constitution in my car. Only once have I had a chance to do the great routine.
"Do you mind if I search your car?"
"Yes, I do mind, but you are welcome to leaf through this copy of the constitution if you'd like."
Luckily, the county I live in makes them ask as a matter of policy, if he had actually been suspicious, he probably wouldn't have thought I was funny.
posted by Megafly at 4:22 PM on June 2, 2006
"Do you mind if I search your car?"
"Yes, I do mind, but you are welcome to leaf through this copy of the constitution if you'd like."
Luckily, the county I live in makes them ask as a matter of policy, if he had actually been suspicious, he probably wouldn't have thought I was funny.
posted by Megafly at 4:22 PM on June 2, 2006
For an excellent treatment of how to handle nosy cops during a traffic stop (and other situations), see the ACLU's video "Busted" (yeah, kind of an unfortunate title). Available here and well worth the price.
posted by telstar at 4:31 PM on June 2, 2006
posted by telstar at 4:31 PM on June 2, 2006
Um...gun? Unless it’s ok in Virginia to carry a pistol in your car. I dunno. But if it is the search is garbage.
It's legal in VA to carry a handgun in your car. In the open if you don't have a permit, concealed or in the open if you do have a permit. So, it is not probable cause for a search.
posted by SuzySmith at 4:38 PM on June 2, 2006
It's legal in VA to carry a handgun in your car. In the open if you don't have a permit, concealed or in the open if you do have a permit. So, it is not probable cause for a search.
posted by SuzySmith at 4:38 PM on June 2, 2006
You have to wonder about a place where having a gun in your car is no cause for suspicion but having a hand-labelled CD is.
posted by lupus_yonderboy at 4:47 PM on June 2, 2006
posted by lupus_yonderboy at 4:47 PM on June 2, 2006
So since the conviction was overturned was the money or at least the dope returned. How does the law work for illegally seized materials?
posted by hexxed at 5:10 PM on June 2, 2006
posted by hexxed at 5:10 PM on June 2, 2006
Even more interesting, how does it work for illegal illegally seized materials, like the dope?
posted by smackfu at 6:10 PM on June 2, 2006
posted by smackfu at 6:10 PM on June 2, 2006
Virginia is for Lovers...of guns!
posted by kirkaracha at 6:20 PM on June 2, 2006
posted by kirkaracha at 6:20 PM on June 2, 2006
Well the obvious solution to this is that the RIAA just needs to hire their own mercenary police force, heavily-armed, to patrol the streets for potential pirates.
I thought they already had that, and that's what this was about. I mean cops busting people on the streets for pirate CDs? Even if they were illicit copies, is this what cops in our post-911(TM) world should be doing with their time?
posted by Kirth Gerson at 6:29 PM on June 2, 2006
I thought they already had that, and that's what this was about. I mean cops busting people on the streets for pirate CDs? Even if they were illicit copies, is this what cops in our post-911(TM) world should be doing with their time?
posted by Kirth Gerson at 6:29 PM on June 2, 2006
the RIAA just needs to hire their own mercenary police force, heavily-armed, to patrol the streets for potential pirates
You mean like this?
posted by SenshiNeko at 7:01 PM on June 2, 2006
You mean like this?
posted by SenshiNeko at 7:01 PM on June 2, 2006
Even if they were illicit copies, is this what cops in our post-911(TM) world should be doing with their time?
Perhaps they could get some kind of federal pork for it?
posted by Artw at 10:19 PM on June 2, 2006
Perhaps they could get some kind of federal pork for it?
posted by Artw at 10:19 PM on June 2, 2006
I love the fact that you can have gun on your passenger seat, but mix CD's are a no-no.
posted by dripdripdrop at 7:52 AM on June 3, 2006
posted by dripdripdrop at 7:52 AM on June 3, 2006
The 4th amendment isn't the whole story regarding searches though, especially when considering vehicle searches.
Officers are able to search your car if they feel the need to in order to preserve their safety, so anything in the interior of the car is fair game, even without a warrant. You can refuse, but if you do then they have probable cause to impound your car.
Don't keep illegal things in your car.
posted by craven_morhead at 9:39 AM on June 3, 2006
Officers are able to search your car if they feel the need to in order to preserve their safety, so anything in the interior of the car is fair game, even without a warrant. You can refuse, but if you do then they have probable cause to impound your car.
Don't keep illegal things in your car.
posted by craven_morhead at 9:39 AM on June 3, 2006
The best probable cause that didn't happen was in Germany.
Four senior US Army officers in uniform were driving in a military van, in uniform. One, a Major, was going to umpire his son's little league game later that afternoon, and had purchased a big bag of powdered gypsum to mark the field with.
The bag was rotten, so he transferred the gypsum into a bunch of quart-sized baggies he had in his office. Then he put the baggies full of white powder into an open cardboard box and put it in the back of the van.
Then the van arrived at a routine Polizei roadblock, to check for papers.
As the Polizei officer approached the car, the moment he glanced into the back of the van his eyes grew large, and the Major suddenly realized what those baggies full of white powder might look like to a cop.
But, their papers being in order, no question was asked. It being Germany, the cop probably figured they had a license to do that.
posted by kablam at 9:43 AM on June 3, 2006
Four senior US Army officers in uniform were driving in a military van, in uniform. One, a Major, was going to umpire his son's little league game later that afternoon, and had purchased a big bag of powdered gypsum to mark the field with.
The bag was rotten, so he transferred the gypsum into a bunch of quart-sized baggies he had in his office. Then he put the baggies full of white powder into an open cardboard box and put it in the back of the van.
Then the van arrived at a routine Polizei roadblock, to check for papers.
As the Polizei officer approached the car, the moment he glanced into the back of the van his eyes grew large, and the Major suddenly realized what those baggies full of white powder might look like to a cop.
But, their papers being in order, no question was asked. It being Germany, the cop probably figured they had a license to do that.
posted by kablam at 9:43 AM on June 3, 2006
Well maybe he thought it was a fertilizer car bomb instead of coke.
posted by uncle harold at 10:55 AM on June 3, 2006
posted by uncle harold at 10:55 AM on June 3, 2006
hexxed: So since the conviction was overturned was the money or at least the dope returned. How does the law work for illegally seized materials?
smackfu: Even more interesting, how does it work for illegal illegally seized materials, like the dope?
I was talking about this wwith some friends the other night. Do they legally have to return the illegal substances when the conviction is overturned? I mean, its as if the event never happened, correct? Furthermore, the money, which was probably connected to the drugs either throgh purchase or sales, is potentially illegal as well. If it was connected with the sale of marijuana then it too should have been confiscated.
I have a strange feeling there is alot of 'gray area' when it comes to things like this. And by gray area I mean, cops taking the money and drugs, even though the conviction was overturned, and keeping it.
What can the dude say? Give me back my 3 ounces of weed?
posted by RobertFrost at 9:04 AM on June 4, 2006
smackfu: Even more interesting, how does it work for illegal illegally seized materials, like the dope?
I was talking about this wwith some friends the other night. Do they legally have to return the illegal substances when the conviction is overturned? I mean, its as if the event never happened, correct? Furthermore, the money, which was probably connected to the drugs either throgh purchase or sales, is potentially illegal as well. If it was connected with the sale of marijuana then it too should have been confiscated.
I have a strange feeling there is alot of 'gray area' when it comes to things like this. And by gray area I mean, cops taking the money and drugs, even though the conviction was overturned, and keeping it.
What can the dude say? Give me back my 3 ounces of weed?
posted by RobertFrost at 9:04 AM on June 4, 2006
Officers are able to search your car if they feel the need to in order to preserve their safety, so anything in the interior of the car is fair game, even without a warrant. You can refuse, but if you do then they have probable cause to impound your car.
posted by craven_morhead at 9:39 AM PST on June 3
Refusal to consent to a search does not constitute probable cause.
posted by Optimus Chyme at 11:22 AM on June 4, 2006
posted by craven_morhead at 9:39 AM PST on June 3
Refusal to consent to a search does not constitute probable cause.
posted by Optimus Chyme at 11:22 AM on June 4, 2006
RobertFrost: for medical marijuana, apparently it does happen...
posted by dripdripdrop at 12:05 PM on June 4, 2006
posted by dripdripdrop at 12:05 PM on June 4, 2006
He might get the cash back (depends on his lawyer), but the drugs are gone. Even if the authorities were willing to hand the drugs back over (which they're not), he'd be an idiot to take it. Since he's not legally allowed to possess marijuana, as soon as he took posession he'd risk arrest. I'm sure the cops who busted him would love a second chance, and this time they'd use a better excuse.
posted by Crash at 7:09 AM on June 5, 2006
posted by Crash at 7:09 AM on June 5, 2006
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If a cop has probable cause to stop you, he can pretty much find probable cause to search your car.
posted by craven_morhead at 2:47 PM on June 2, 2006