The Volokh Conspiracy

I thought SCOTUS said this was okay? In fact, isn't this the main way you can search incident to arrest for a minor ordinance violation?

It may be legal, but it isn't OK.

The two concepts are not the same.

What Robert West said. Many dumb things are completely constitutional.

But he does admit to challenging the officer's questions during the stop

This almost certainly doesn't excuse the arrest, but I wonder what it means.

Also, having a town named "Melissa" leads to some snicker-worthy sentences in news reports, if part of your brain is 6 years old.

And SCOTUS has definitely not approved of strip searches for this. Wren specifically noted that such invasive searches are an example of what is likely not OK in a search incident to arrest for a traffic stop.

By the way, and Orin correct me if I'm wrong because that recent case confused me on this, but the seatbelt case said that an arrest was OK if state law OK'd it. So, in states, like California, that do not allow arrests for traffic stops, it's not OK. (Moot point here, but still somewhat reassuring to people that we can still change the law.)

I think the arrest is OK, but the strip search is definitely not. I don't think an officer should have to conduct a debate with a violator every time he makes a traffic stop. He should issue a warning to co-operate and if it is ignored follow up with an arrest.

The strip search was probably over the top, but it may be standard for any arrest there, in a CCW state, it may well be standard practice. At least it wasn't a body cavity search.

should'a told them he was in for littering

By the way, I was confused, in Whren, they referred to body-cavity searches, not strip searches. Still think that was not right, but not sure whether it was legit under existing precedent.

most states have decrim'd minor moving violations as infractions. apparently, this jurisdiction hasn't .

that is of course ridiculous.

nothing would prevent the legislature from changing this. fwiw, it benefits all sides to decrim stuff like this. it makes the case civil which means cheap hearings, hearsay ok, vs. a criminal trial beyond a reasonable doubt...

decrim'ing also prevents discretionary abuses such as this

as the article notes the chief had never even heard of this happening. obvious, it's exceptionally rare, so byomtov's comment is ridiculous. the fact is all evidence suggests this is an exceptionally RARE event. that's why it made the news in the first place. see: man bites dog

He's not talking about an individualized strip search. He's talking about the process whereby cops take everyone they're moving from the drunk tank into cells and place them into a big room. Everyone is then ordered to take off all of their clothes. The cops then go around distributing the jumpsuits and, presumably, checking for contraband (and making mental size comparisons).

Am I the only one who has suffered this indignity at the hands of Texas law enforcement??

"I went school in Texas, I know small town cops there - they were the thugs in my H. S. class"

Small town cops in Washington State were the same -- I suspect this is nearly universal.

KRIS:,

Thanks for clarifying. There is way too little factual information here to be making all these judgements. If his rights were violated, he can sue. Let's see if there isn't more factual info on this.

At a glance without all of the fax it sounds like "Contempt of Cop" to me. Contempt of a seasoned veteran can result in a lot of pain with little or no visible marks.

My experience with small town cops has been pretty much the opposite of everyone else's apparently. I have found that the smaller the agency that the officer works for the more friendly and professional he is.

Virignia v Moore seemingly would have no effect on this case. That case dealt with whether arrests unauthorized by state law are constitutional.

in TX this appears to be a legal arrest. Texas Code of Criminal Procedure Art. 14.01b (authorizing arrests by police for any offesnse committed in presence of officer); Minor v. State 219 S.W.2d 467 (upholding arrest for speeding committed in offerer presence).

>>>{ I don't think an officer should have to conduct a debate with a violator every time he makes a traffic stop.} He doesn't. He needs to hand the violator a ticket, smile, walk back to his patrol car and leave. A jaunty wave is optional, but encouraged.

They can even use the opening scene of "Super Troopers" as a training video for this sort of thing.

"I went school in Texas, I know small town cops there - they were the thugs in my H. S. class"

"Small town cops in Washington State were the same -- I suspect this is nearly universal."

Same for Maine and Michigan, in my experience. Biggest bullies and drunks (along with some other drugs). Also usually stupid, though smart enough to realize that it would take a gun and badge to maintain a smidgen of the authority they had in high school.

"Yes sir" and "No sir" (or "Ma'am") should be the only words out of your mouth 99% of the time you are stopped for a traffic violation. Oh, and "thank you sir" when he's finished and you get the ticket.

The other 1% can be dicey, though. Most cops are trying to do a good job, but there are a few jerks and kooks who give the profession a real bad name. But there are a helluva lot more mouthy drivers than there are psycho cops IMO. So the cops are justified in having a very skeptical attitude about any excuses you give. And if you are trying for a power play, well just don't go there.

We don't know the facts, of course, but the overwhelming probability is that Mr. Robinson was being a smart-aleck and or a jerk. The cop probably over-reacted a little, too. But methinks Mr. Robinson started it. Medoubt he's learned his lesson, though....

And there we have it. Hopefully, this smart-mouthed kid learned a lesson in respect.

Because the best way to teach respect for authority is to let you experience potentially unwarranted exercise or coercive state power whenever you question it?

No matter if the cop is right or wrong do what s/he says with a smile on your face.

Ithaqua: the idea that jail time, with attendant strip search, is a proper punishment for lack of respect of a police officer is ... somewhat terrifying.

I mean, yeah, as a practical matter I concede that this sort of thing happens and that it's unwise to be disrespectful to a police officer. But throwing someone in jail for disrespecting authority is per se an abuse of power.

Power corrupts. Especially power held by high school dropouts with big muscles, weak egos, and bad marriages (I went school in Texas, I know small town cops there - they were the thugs in my H. S. class.). Even more so in a LE system that successfully fights outside supervision at every turn.

Well, yeah, but giving them badge numbers and dashboard cameras at least let's us keep track of them.

"Ithaqua: the idea that jail time, with attendant strip search, is a proper punishment"

Not to mention that to punish is not in a cop's job description but a matter for the court.
Still, I would like to know exactly what that young man said to the officer and I would like to get to know the officer a little to get a reading on him. Won't happen, of course so I withhold judgement.

And there we have it. Hopefully, this smart-mouthed kid learned a lesson in respect.

That is not the way to instill respect, that is the way to instill fear and hatred.
A cop doesn't deserve my respect because of the job he was able to get. Or for the responsibility that goes with it. Hiring practices being different in some areas that would make little sense.
A cop does deserve the basic respect that you should start out with for any other stranger and MAYBE a little benefit of the doubt because of their current situation. If they go on to earn more respect so be it.

Given that virtually everyone in their car fails to follow all the traffic law, I venture to say that the automobile exception has now effectively swallowed the fourth amendment whole. I hope Orin can still find gainful employment.

I know I posted this exact same video last time, but seriously, I nominate this guy to be Chief of Chiefs of Police in the US. This is probably the guy that Scalia was talking about in Hudson.

MHS, that may have been unconstitutional if you had to wait around for the dog. That also depends on what standard the judge has that day for "unreasonably prolonging the seizure".

If only there was some kind of school or other training that a police officer could attend that might give them the tools to defuse a confrontation rather than escalating it. Can you imagine that taking hold in BFE?

Police are tarred with the "abusive" brush, citizens "violent." Both are due to a minority percentage of incidents.

The author quoted a small-town prosecutor as saying, "You can beat the rap, but you can't beat the ride."

To be fair, behind every bad cop there is a prosecutor (lawyer) willing to back the cop up so long as he brings in the "collars" for the plea bargain system.

Ego boosting at the expense of others isn't confined to cops. I've seen plenty of it in County Attorney's offices.

As for mouthy drivers, here's how to deal with it.
http://www.youtube.com/watch?v=fyHMbHHtArE

Sounds like he committed the age-old crime of Disturbing the Police.

...There aren't many questions involved in a traffic stop for a turn signal violation. The officer would need to obtain the drivers license, registration, and in some states, his insurance card. Usually he will verify that the drivers address is correct as given on his license and , if the car is registered to someone else, ask him who owns the car. Then it's ticket time.
..A lot of antipathy here towards a cop you never knew and about a stop you aren't privy to. I did this for 32 years and almost everyone I stopped was civil. Some were polite. The officer has the duty to explain the violation and answer reasonable questions. A few, very few but memorable, folks said outrageous things because they were angry or stupid. If ( I don't know this happened here, but it's happened to me ) the driver refused to verify his address, became supercilious when asked who the car owner was or provoked the officer with talk of weapons or following him home to kill his family, then one thing can lead to another quickly. You never know what mood or emotional difficulty this driver was in before he was stopped.
...Crazy Train, California does allow/require physical arrest for some CVC violations, see : 40302,40303,40305 vc.

I heard a great story from an older prosecutor a little while ago that seems somewhat relevant here: Young Prosecutor was appearing in court w/ Defendant X who had been arrested by Officer Y. Defendant X was stating that Officer Y had arrested him, then hung him by his ankles out of a window until Defendant X finally confessed. In court Young Prosecutor's main argument was "this is completely absurd judge, there is no way the police would hold a person out the window by their ankles." The judge agreed, and Defendant X was sentenced. A few weeks later Young Prosecutor happened to run into Officer Y at a function. Young Prosecutor remarked that he had handled the case involving Defendant X. Officer Y replied, "I remember that case, that stupid son of a XXX. I had to hold that kid out the window by his ankles to make him confess."

Now I know this is a good example of poor behavior (that shouldn't have happened, is wrong, abuse of police power and all that good stuff), but at the same time, it sure makes a good story!

VMakarov:

I said

A cop does deserve the basic respect that you should start out with for any other stranger and MAYBE a little benefit of the doubt because of their current situation.

This is america. Thats all you get to start out, I don't care who you are. You can tear down your position from there or you can build it up.
Basic respect: I wouldn't want to walk up to the car of a person who's day I might be ruining, so I keep my hands on the wheel and turn on my dome light at night so they can see that Im not a threat. How much respect that the officer gets after that is up to him. Again, I don't GIVE respect. You want it EARN IT. Its not that hard. Doing your job usually does it.
For the record I have never failed to thank an officer for a ticket that I did not beet in court and I have never argued a ticket with the officer in the field. Thats why we have judges.

The comments equating the behavior of the Texas police officer to Himmler's SS clearly establishes that the commenters have no idea as to how the SS operated.

o be fair, that was only Gaius Marius, and he's kind of a wacko.

I'm inclined to disagree.

With the "kind of" qualifier.

Young Prosecutor remarked that he had handled the case involving Defendant X. Officer Y replied, "I remember that case, that stupid son of a XXX. I had to hold that kid out the window by his ankles to make him confess."

Behind every Bad Cop there is a accomplice prosecutor. Given their education, outside job prospects, and, BTW, ethical responsibilities, the prosecutors are much more evil but they always escape. After all, they run the CJ system.

99 to 1, the Young Prosecutor just smiled, and let the defendant serve his illegitimately imposed sentence.

This article highlights why the Supreme Court's decision was wrong as a matter of policy, if not legally/constitutionally wrong.

I think the cop should just give the person the ticket, and not insist that he or she sign it to acknowledge receipt or formally arrest the person when he or she refuses to sign. Why should it matter if the traffic offender signs it on the "promises to appear" line? The cop can note that the person refused to sign but was handed the ticket. And, if the person doesn't sign it, and doesn't appear, then the court can impose a larger fine, which the state collects when the offender renews the car registration.

I wish more people would "challeng[e] the officer's questions during the stop." Where are you going? Where are you coming from? What do you do for a living? Either I was speeding or I was not. That is determined by the radar gun, not by my profession. Where am I coming from? Unless you smell alcohol, and you think the answer may be "a bar," that's frankly no one else's concern.

This kid was probably much more of a jerk than he lets on, but he was probably also correct in refusing to tell his life story just because he got pulled over.

I agree with KRIS and Mac, there’s probably quite a bit more to the story then what’s been reported so far and far too little on which to make an informed opinion. If the officer has the discretion to make an arrest for this sort of traffic violation, then they can make an arrest. Whether that discretion was trigged by the officer being “mean” or the driver acting like a “jerk” may make one appear more sympathetic than the other but it doesn’t affect the legality of arrest.

I think it is always best to be polite to officers. It may not get you out of the ticket, but at least it can make a potentially unpleasant event pass in a less unhappy way.

I was 41 years old the first time I got a speeding ticket, on I-79 southbound in West Virginia. I was as polite as can be with the officer and, while I was not happy to get the ticket, I thanked him for being out on the road. After he issued me the ticket, I told him that I used to be a prosecutor and sometimes tried traffic cases. When he heard that, he told me that if he had known I was a former prosecutor, he would have let me off with a warning.

Now, I did not entirely believe this. The prosecuting attorney I worked for had a lead foot and was always getting tickets. Anyways, several years later, I got pulled over while taking a group of attorneys from my office to lunch (ironically, one of the attorneys was telling us a story about how she had gotten a speeding ticket on that same stretch of road the night before; double ironically, she was about to complain to me that I was driving too slow). Once again, I was as polite as can be with the officer. This time, I was sure to mention that I used to prosecutor traffic cases and would not give him any trouble. And what do you know...he let me off with a warning (the fast driving attorney almost lost her temper; one of the other attorneys put his hand on her shoulder to keep her from lunging at the officer).

2 years later, I got pulled over again. Once again, I was polite with the officer. As luck would have it, I was inside the county where I used to work. I asked the officer about his dealings with the prosecutor's office and the judges. Once again, I got off with a warning.

All in all, being polite with officers is the best approach. I hope I never have to test my "former prosecutor" story any more.

--Should traffic offenses result in arrest?

It was my understanding of the law that in most states, being pulled over WAS an arrest, legally speaking. That detention alone qualified as an arrest, and therefore, all subsequent elements of detention, including possible jailing were well within the legal purview of the officer.

Now, usually, being pulled over only results in a ticket, but that's at the officer's discretion, not because he needs to have more cause in order to effect the "Arrest".

Can anyone clarify? Tell me I'm wrong? Various states have various ideas of this?

.. An enforcement action that results in a summons ( ticket ) is usually called a non custodial arrest. Most states have reduced traffic violations to the status of infraction. You can't be sentenced to jail for an infraction but you can be fined a nominal amount if found guilty. And because you can't be jailed, the Supreme Court says you don't have a right to a jury trial, just a trial by a judge. The next step up is misdemeanor, which can result in a fine of ( usually ) $1000 and up to a year in jail. Because of the possibility of jail time, you can get council provided if you can't afford it and you can get a jury trial. Top of the list of crimes are felonies, conviction of which may result in enormous fines and prison time, even death.
..Some traffic offenses are misdemeanors, including drunk driving and reckless driving and some others. All this varies state by state and may or may not be true in your state.

During my research, I was struck by the astounding power that police enjoy when Belton searches are combined with Atwater arrests. This power is ripe for police abuse,

No problem, Supreme Court Justices are never hassled by the police so how can anyone else be? After all, the police are "professionals" who's vital work shouldn't be impeded by the Constitution.

...Yeah, I mean, if they can send a man to the moon, why can't they...............?

Assuming that he was going to be jailed for even an hour or two, he needed to be fully searched before being placed there, yes?

Some of you would howl your heads off if contraband/weapons entered a jail because the facility failed to do such a search. (Likely the same ones who are howling now because they DID the required search).

Oren:

I know I posted this exact same video last time, but seriously, I nominate this guy to be Chief of Chiefs of Police in the US. This is probably the guy that Scalia was talking about in Hudson.

I have it on pretty good authority (a police officer in Northern VA) that this is fake. It was set up by the Virginia State Trooper to convince his supervisor that he was not abusive to people he stopped. He was the subject of a number of complaints, so he "stopped" a friend by arrangement and then acted angelic while his friend ranted.

"Yeah, I've been down this road before - the problem is, the citation that they hand you makes you agree to terms on the reverse of the citation by your signature, but the Cops invariably will NOT let you read what you are agreeing to (the back of the citation is hidden by extra copy which is attached) before you sign it."

Every Texas citation I've ever seen (and I've worked for a major Texas municipality and a minor one, and defended clients' citations in many others) requires you to sign under language like this: "NOTICE OF COURT APPEARANCE -- THIS IS NOT A PLEA: I promise to appear in court [at such time] to enter a plea." I've never seen a Texas citation that required the driver to certify to anything else. The officer has to sign the citation attesting that he had probable cause to write it to you. Again, Chapter 543 controls the meaning of the driver's signature on the citation...there shouldn't be any reason for you to read the entire citation before signing under a promise to appear.

Kiniyakki says;

A few weeks later Young Prosecutor happened to run into Officer Y at a function. Young Prosecutor remarked that he had handled the case involving Defendant X. Officer Y replied, "I remember that case, that stupid son of a XXX. I had to hold that kid out the window by his ankles to make him confess."

And he calls this a "great story." Then in the very next post he says;

General deterence. That is why it is okay to make this arrest. This type of story makes some news, and people realize they have to be polite to the police. For the guy who went to jail - sorry, but some little punk has to be the example

No thoughts at all on what should have happened to cops who hold suspects by their ankles out the window, or young prosecutor's who find that so unbeleivable that the court shouldn't even address it, or the judge who refused to address it?

And you wonder why some people think that the real problem is prosecutors.