(court) Court reversees search of a car based on possible bootleg CD's

[SirFozzie]

Wow. Saw this on Digg.

An officer stops a car based on a equipment malfunction/violation.
Sees slimline CD cases with (from where he was) blurry packaging
Calls two of his fellow officers to search the car, based off the probable cause of the slim cd's (as bootlegs/unauthorized copies).
They find 4 oz of Marijuana and $400.
They arrest him for possession with intense to distribute.

The judge just threw out the evidence, thank god. After all, if you create a legal mix CD for use in your car, that should not be probable cause for a search/seizure.

http://www.courts.state.va.us/opinio...tx/0250053.txt

[albionmoonlight]

Impressive.

If you would have told me the facts and law beforehand, I would have predicted that a court would come out the other way.

Of course, this is one of those cases where had the cops found--not a little bit of pot, but evidence that this guy was a serial killer or a member of Al Queda--the outcome would have been different. Technically, it should not be different, because the legal analysis is the same, no matter what is found beneath the seat. But judges are human and sometimes practical considerations come into play.

[JonInMiddleGA]

Needless to say, we disagree completely on this.

If a cop sees a bag containing a suspicious substance resembling, say, cocaine, that's more than ample probable cause AFAIC. If the bag turns out to contain powdered sugar for making donuts, that's irrelevant to the issue of probable cause.

Same thing here AFAIC, and heavy boos & hisses to the judge for not having enough common sense to recognize that.

[rkmsuf]

Originally Posted by albionmoonlight

But judges are human and sometimes practical considerations come into play.

But shouldn't they sometimes?

[SirFozzie]

Originally Posted by JonInMiddleGA

Needless to say, we disagree completely on this.

If a cop sees a bag containing a suspicious substance resembling, say, cocaine, that's more than ample probable cause AFAIC. If the bag turns out to contain powdered sugar for making donuts, that's irrelevant to the issue of probable cause.

Same thing here AFAIC, and heavy boos & hisses to the judge for not having enough common sense to recognize that.

Actually, common sense says the other way, Jon

Those principles are applicable in this case because, while the homemade appearance of a recording may lead a person to believe it is not fully labeled, 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. As in Brown, we cannot find probable cause based solely on suspicious items that could be legitimate. 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.

Therefore, they had no reasonable cause to search.

(what is surprising to me, is the guy had a GUN, and even made sure to have it in plain sight (assuming even if it was proper licensed), and that wasn't the probable cause that they cited)

[albionmoonlight]

Originally Posted by JonInMiddleGA

Needless to say, we disagree completely on this.

If a cop sees a bag containing a suspicious substance resembling, say, cocaine, that's more than ample probable cause AFAIC. If the bag turns out to contain powdered sugar for making donuts, that's irrelevant to the issue of probable cause.

Same thing here AFAIC, and heavy boos & hisses to the judge for not having enough common sense to recognize that.

I think that a plastic baggie of white powder in plain view gives them reason to search every time. The kind of strange twist in this case is that the item in question is not actually illegal to possess. It is only illegal to attempt to resell, rent, etc.

The court here seemed to hinge its analysis on the fact that, while there was plenty of evidence to demonstrate that the CDs had been burned, there was no evidence to indicate that the driver intended to sell them. I think that this is a different case if they see these CDs accompanied by a customer list, or with price tags on them, or packaged in such a way that they look like they are meant for resale.

Either way, it is a close case (it had a dissent) and, as I said, suprised me. I don't see it making much of a difference either way in terms of moving the law--even in Virginia. It did not change the standard--it just applied the standard to a pretty narrow set of facts.

[st.cronin]

This is strictly a procedural/technical thing, this has nothing to do with privacy or the right to bootleg, or anything similiar.

[cartman]

Originally Posted by JonInMiddleGA

If a cop sees a bag containing a suspicious substance resembling, say, cocaine, that's more than ample probable cause AFAIC. If the bag turns out to contain powdered sugar for making donuts, that's irrelevant to the issue of probable cause.

It depends on the state where this happened. In Texas, the legal ruling is such that, yes, if you see something that looks incriminating, you can invoke probable cause to insepct that item. But if you determine that what you thought you saw (coke/bootleg CDs) isn't what you thought (powdered sugar/homemade mix CD), that ends the coverage of probable cause.

To me, that seems how this case was ruled. Once the CDs were found to not be of an illegal nature, that should have stopped the search of the car.

[JonInMiddleGA]

Meanwhile, another f'n criminal gets a free pass.
Whoo-hoo, everybody celebrate.

[rkmsuf]

Originally Posted by JonInMiddleGA

Meanwhile, another f'n criminal gets a free pass.
Whoo-hoo, everybody celebrate.

at least the cds were legit

[albionmoonlight]

Originally Posted by rkmsuf

But shouldn't they sometimes?

The longer I do this law thing, the more I think so.

If you were to survey law professors, I bet 95% would say no. And that is the "correct" answer. If, in this case, a search is illegal, then it is illegal no matter what it turns up. Consistency in the law does not really allow for there to be another textbook answer.

But the law does not operate in professors' ivory towers or in the textbooks--but in the real world. And I think that judges are human beings and not robots for a reason. We want a human being making these calls at the end of the day.

The best thing that we can do is to stop focusing so much on whether judges are "liberal" or "conservative" and focus on whether they are brilliant people--people with real world wisdom. Those are the people who can best balance practical considerations with intellectual honesty.

[rkmsuf]

Originally Posted by albionmoonlight

The longer I do this law thing, the more I think so.

If you were to survey law professors, I bet 95% would say no. And that is the "correct" answer. If, in this case, a search is illegal, then it is illegal no matter what it turns up. Consistency in the law does not really allow for there to be another textbook answer.

But the law does not operate in professors' ivory towers or in the textbooks--but in the real world. And I think that judges are human beings and not robots for a reason. We want a human being making these calls at the end of the day.

The best thing that we can do is to stop focusing so much on whether judges are "liberal" or "conservative" and focus on whether they are brilliant people--people with real world wisdom. Those are the people who can best balance practical considerations with intellectual honesty.

Post of the year.

[JonInMiddleGA]

Originally Posted by rkmsuf

at least the cds were legit

Wanna lay any side bets on whether the source materials for the "mix CD's" were legal?

[RendeR]

Originally Posted by JonInMiddleGA

Meanwhile, another f'n criminal gets a free pass.
Whoo-hoo, everybody celebrate.

The laws of this country are'nt worth the paper they are printed on if those we elect/hire/select to enforce them choose what to ignore when they feel like it.

Sure the drugs were illegal, this guy is going to get pulled over a thousand times in the near future and sooner or later he's gonna get caught anyway, just not this time. The cops made a mistake and that mistake invalidates anything and everything they found.

If we jailed him anyway what good are our laws that protect the "innocent until proven giulty"?

[RendeR]

Originally Posted by albionmoonlight

The longer I do this law thing, the more I think so.

If you were to survey law professors, I bet 95% would say no. And that is the "correct" answer. If, in this case, a search is illegal, then it is illegal no matter what it turns up. Consistency in the law does not really allow for there to be another textbook answer.

But the law does not operate in professors' ivory towers or in the textbooks--but in the real world. And I think that judges are human beings and not robots for a reason. We want a human being making these calls at the end of the day.

The best thing that we can do is to stop focusing so much on whether judges are "liberal" or "conservative" and focus on whether they are brilliant people--people with real world wisdom. Those are the people who can best balance practical considerations with intellectual honesty.

Awesome post.

[SirFozzie]

Benjamin Franklin thought "that it is better [one hundred] guilty Persons should escape than that one innocent Person should suffer.".

I agree with ol'Ben yet again.

[rkmsuf]

Originally Posted by SirFozzie

Benjamin Franklin thought "that it is better [one hundred] guilty Persons should escape than that one innocent Person should suffer.".

I agree with ol'Ben yet again.

Ben ever drop acid?

[SirFozzie]

No, but I hear he got a real charge out of his experiments.

[JonInMiddleGA]

Originally Posted by RendeR

"innocent until proven giulty"?

The drugs were in his f'n car, how much more "proven guilty" should really be required?

There was not, as far as I could see, any claim that the officer acted in anything other than good faith with regard to probable cause. (I skimmed through the linkage, there could have been something about that & I just missed it).

That should be, AFAIC, ample grounds to preserve the evidence discovered in the process of the investigation.

[rkmsuf]

I suspect Ben might sing a different tune in today's America.

[SackAttack]

Originally Posted by JonInMiddleGA

The drugs were in his f'n car, how much more "proven guilty" should really be required?

There was not, as far as I could see, any claim that the officer acted in anything other than good faith with regard to probable cause. (I skimmed through the linkage, there could have been something about that & I just missed it).

That should be, AFAIC, ample grounds to preserve the evidence discovered in the process of the investigation.

What they're saying is that while the officer believed he had probable cause, he did not - which invalidates the rest of what they found.

Foz was saying dude had a gun out in the open. Had they proceeded on that basis, this story might have turned out very differently. Burnt CD's, though? Meh.

Sorry, Jon, I know you want to string up pirates and bootleggers by the nads and stick firecrackers under their toenails, but you're wrong on this one.

[JonInMiddleGA]

Originally Posted by SirFozzie

Benjamin Franklin thought "that it is better [one hundred] guilty Persons should escape than that one innocent Person should suffer.".

I agree with ol'Ben yet again.

Ol' Ben wouldn't the first historic figure to have had his head planted firmly up his ass. Let him take a turn in 2006 & then we'll see how his wisdom (or lack thereof) holds up.

[st.cronin]

Originally Posted by SirFozzie

Benjamin Franklin thought "that it is better [one hundred] guilty Persons should escape than that one innocent Person should suffer.".

I agree with ol'Ben yet again.

Within the strict confines of the legal system, of course. The problem is that 100 escaped criminals will cause more than one innocent person to suffer.

[Glengoyne]

While I share JIMG's disdain for pirated music, I do think this is a correct ruling by the judge.

[SirFozzie]

Originally Posted by JonInMiddleGA

The drugs were in his f'n car, how much more "proven guilty" should really be required?

There was not, as far as I could see, any claim that the officer acted in anything other than good faith with regard to probable cause. (I skimmed through the linkage, there could have been something about that & I just missed it).

That should be, AFAIC, ample grounds to preserve the evidence discovered in the process of the investigation.

Well, Jon, here's where you and I disagree. To me, it's quite obvious that the cop wanted to seize any reason possible to search the vehicle (and in a way, I don't blame him, he was skirting the bounds on several other reasons, it's not a crime to carry an unloaded gun in the car in VA, and the guy did move when pulled over (to make sure the gun was plainly visible as required)). But the reason he had probable cause was bogus and a pretext.

[JonInMiddleGA]

Originally Posted by SackAttack

What they're saying is that while the officer believed he had probable cause, he did not - which invalidates the rest of what they found.

Which is essentially what I'm disagreeing with.

There may be judicial precedent to support that ruling (I'm almost certain that there is), but there's nothing that requires me to agree with that interpretation.

[Samdari]

Originally Posted by JonInMiddleGA

The drugs were in his f'n car, how much more "proven guilty" should really be required?

There was not, as far as I could see, any claim that the officer acted in anything other than good faith with regard to probable cause. (I skimmed through the linkage, there could have been something about that & I just missed it).

That should be, AFAIC, ample grounds to preserve the evidence discovered in the process of the investigation.

You know John, the Bill of Rights actually prevents the police from catching many criminals. I say we abolish it.

[rkmsuf]

Originally Posted by SackAttack

What they're saying is that while the officer believed he had probable cause, he did not - which invalidates the rest of what they found.

Foz was saying dude had a gun out in the open. Had they proceeded on that basis, this story might have turned out very differently. Burnt CD's, though? Meh.

Sorry, Jon, I know you want to string up pirates and bootleggers by the nads and stick firecrackers under their toenails, but you're wrong on this one.

that's great when the dude tokes up next and ramrods 5 cars on the freeway. then people will be screaming about not doing something when they could have.

heck maybe that bazooka was for range only

[JonInMiddleGA]

Originally Posted by Samdari

You know John, the Bill of Rights actually prevents the police from catching many criminals. I say we abolish it.

"Abolish" might be a bit strong.

"Adjust", "correct", "amend", or perhaps "reassess the interpretations" of it, all of those would generate no immediate upset on my part. In fact, I'd be likely to say it was something long overdue.

[Hurst2112]

that link is a dry, boring read.

[SirFozzie]

Originally Posted by JonInMiddleGA

Which is essentially what I'm disagreeing with.

There may be judicial precedent to support that ruling (I'm almost certain that there is), but there's nothing that requires me to agree with that interpretation.

and no one's forcing you to, Jon.

actually, I'm interested in another state's ruling that allowed police to go into a house without a warrant because the person was suspected of driving home while intoxicated, and by the time a warrant could be procured, the evidence would be lost (the person would sober up)

[SackAttack]

Originally Posted by rkmsuf

that's great when the dude tokes up next and ramrods 5 cars on the freeway. then people will be screaming about not doing something when they could have.

heck maybe that bazooka was for range only

Hyperbole doesn't suit you.

The Constitution prohibits unreasonable search and seizure. That means even if he has a bomb stuffed up his bunghole, you'd better be able to show good cause for the search before you prosecute the search.

It's easy to say "but, but, but...think of the children! Think of all the people he might kill!" If we're going to go that route, here, let me join in your hyperbole:

OMG THAT GUY HAS A CIGARETTE HANGING OUT THE WINDOW! He's probably planning to set a fire in the dry brush! Search his car!

[rkmsuf]

Originally Posted by SackAttack

Hyperbole doesn't suit you.

The Constitution prohibits unreasonable search and seizure. That means even if he has a bomb stuffed up his bunghole, you'd better be able to show good cause for the search before you prosecute the search.

It's easy to say "but, but, but...think of the children! Think of all the people he might kill!" If we're going to go that route, here, let me join in your hyperbole:

OMG THAT GUY HAS A CIGARETTE HANGING OUT THE WINDOW! He's probably planning to set a fire in the dry brush! Search his car!

that's why you need reasonable, thinking judges. refer to albion.

[RendeR]

Originally Posted by JonInMiddleGA

The drugs were in his f'n car, how much more "proven guilty" should really be required?

There was not, as far as I could see, any claim that the officer acted in anything other than good faith with regard to probable cause. (I skimmed through the linkage, there could have been something about that & I just missed it).

That should be, AFAIC, ample grounds to preserve the evidence discovered in the process of the investigation.

No one is saying he didn't act in good faith, he believed he HAD probable cause, He felt he was within his rights and laws to do so, however the judge disagrees and thats that.

My statement wasn't about this particular case jon, it was to (hopelessly i know) get you to think about the ramifications of the judge NOT disagreeing. If we ignore the probable cause statutes and just search where and what we want then everyone becomes a victim of an uncontraind police force. One of our base freedoms is the freedom from search and seizure WITHOUT probable cause.

[JonInMiddleGA]

Originally Posted by RendeR

One of our base freedoms is the freedom from search and seizure WITHOUT probable cause.

And where we appear to be disagreeing is on what should constitute "probable cause".

{edit to fix typo}

[SirFozzie]

Originally Posted by JonInMiddleGA

And where we appear to be disagreeing is on what should constitute "probable cause".

{edit to fix typo}

"He looked suspicious" (which is what this case boiled down to.. he followed all other rules on the traffic stop, such as having the gun in plain sight) should not be probable cause.

[JonInMiddleGA]

Originally Posted by SirFozzie

"He looked suspicious" (which is what this case boiled down to.. he followed all other rules on the traffic stop, such as having the gun in plain sight) should not be probable cause.

Again, if that's how you want to define it, we disagree.

(I'd argue that a reasonable belief, based on what was viewed, that there was contraband in the car should constitute probable cause. Note, I'm not arguing whether it does based on judicial precedent, only that is should.)

[SirFozzie]

The reason I disagree there Jon, is that it opens the door to a whole realm of police prejudice/intimidation. Again the balance is that the average person must have a reasonable cause to believe that a crime has been or is being committed. With iTunes and other LEGAL download services (or ripping one's own albums to CD then making a Mix CD), having a bunch of CD-R's with music in your car (which was the whole reason for the search) that don't meet the resale/transfer criteria, should not be probable cause)

[RendeR]

Originally Posted by JonInMiddleGA

And where we appear to be disagreeing is on what should constitute "probable cause".

{edit to fix typo}

Yes, I understand that too, I was avoiding going off on your well known gestapo world view....

[Bonegavel]

could this be the recipe for the perfect murder?

Do your murderin'. Chop body up into pieces and stuff them under the seat of your car. Fill a lot of plastic baggies with powdered sugar (and label them such) and proceed to get pulled over by a cop.

He sees the baggies and you say, "but it's sugar" and it really is. He searches your car based on the false assumption of drugs and finds the body parts. Case dismissed.

[cartman]

Originally Posted by Bonegavel

could this be the recipe for the perfect murder?

Do your murderin'. Chop body up into pieces and stuff them under the seat of your car. Fill a lot of plastic baggies with powdered sugar (and label them such) and proceed to get pulled over by a cop.

He sees the baggies and you say, "but it's sugar" and it really is. He searches your car based on the false assumption of drugs and finds the body parts. Case dismissed.

One small problem. Once he sees the blood or the chopped up body parts, he then can call for a search warrant. However, if you had the parts in the trunk of your car, not in the cabin, then he wouldn't have cause to look in the trunk. You'd also be in trouble if they brought the drug dogs out, because they often times are trained as cadaver dogs as well.