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Old 06-23-2016, 10:49 AM
 
Location: The Commonwealth of Virginia
650 posts, read 365,829 times
Reputation: 962

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So, I live in Northern Virginia, and I'm taking a driver's improvement class to help with a speeding ticket. The instructor told me that, in the state of Virginia, if a cop stops and cites you for reckless driving (which can be going 20+ mph over the speed limit, or going 80 mph regardless of the speed limit, or a number of other things), that, because reckless driving is a misdemeanor in Virginia, that gives the cop probable cause to search your car.

Does that sound right? It didn't sound right to me, but now that I think about it, I'm not sure....

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Old 06-24-2016, 06:33 AM
 
1,168 posts, read 769,544 times
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Supreme court says no.


Rodriguez v. United States
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Old 06-24-2016, 07:42 AM
 
678 posts, read 664,505 times
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Quote:
Originally Posted by Bill790 View Post
So, I live in Northern Virginia, and I'm taking a driver's improvement class to help with a speeding ticket. The instructor told me that, in the state of Virginia, if a cop stops and cites you for reckless driving (which can be going 20+ mph over the speed limit, or going 80 mph regardless of the speed limit, or a number of other things), that, because reckless driving is a misdemeanor in Virginia, that gives the cop probable cause to search your car.

Does that sound right? It didn't sound right to me, but now that I think about it, I'm not sure....

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Short answer, yes, but its not a simple issue.

A completely arbitrary search is illegal. An officer must have reason to believe a crime has been committed before searching your car. There is a lower expectation of privacy when driving a car, and if you have committed a criminal act, the search is a search incident to arrest. While an officer may cite you for a violation for speeding, if its excessive speeding, they can arrest you for a misdemeanor or potentially felony. If you argue and appear to be resisting a lawful stop or arrest, they can search for weapons to protect the officer, and if they find drugs or weapons or anything in an area the driver could easily get to, its allowed. Once these things happen, the search will be legal.



But remember, the most common cause of a search is consent. NEVER give an officer consent to do anything. If asked, say no and that you would like to speak to your attorney. Say nothing else. Do not argue, tell the officer what the law is or anything else, just loudly say you do not consent to a search and that you want to talk to your attorney, loud enough for the dash or on person recorder to hear you. Its also a good idea to set your phone on record as well.



If the officer has probable cause to believe there is evidence of a crime in your vehicle, like it smells of pot, he can search it. Also, if the officer reasonably believes a search is necessary to their own protection (a hidden weapon, for example), they can search. For these reasons, searches are usually upheld. But not always, so do not consent and let your lawyer fight it later if something illegal is found.
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Old 06-24-2016, 08:23 AM
 
1,168 posts, read 769,544 times
Reputation: 1418
Quote:
Originally Posted by dr.strangelove View Post
Short answer, yes, but its not a simple issue.

A completely arbitrary search is illegal. An officer must have reason to believe a crime has been committed before searching your car. There is a lower expectation of privacy when driving a car, and if you have committed a criminal act, the search is a search incident to arrest. While an officer may cite you for a violation for speeding, if its excessive speeding, they can arrest you for a misdemeanor or potentially felony. If you argue and appear to be resisting a lawful stop or arrest, they can search for weapons to protect the officer, and if they find drugs or weapons or anything in an area the driver could easily get to, its allowed. Once these things happen, the search will be legal.



But remember, the most common cause of a search is consent. NEVER give an officer consent to do anything. If asked, say no and that you would like to speak to your attorney. Say nothing else. Do not argue, tell the officer what the law is or anything else, just loudly say you do not consent to a search and that you want to talk to your attorney, loud enough for the dash or on person recorder to hear you. Its also a good idea to set your phone on record as well.



If the officer has probable cause to believe there is evidence of a crime in your vehicle, like it smells of pot, he can search it. Also, if the officer reasonably believes a search is necessary to their own protection (a hidden weapon, for example), they can search. For these reasons, searches are usually upheld. But not always, so do not consent and let your lawyer fight it later if something illegal is found.

This is not correct. They can do a Terry search which is of your person. Thats it.

The vast majority of cops wont even do that. They will write you a ticket and be on their way unless they really do smell pot or see a bag of drugs on your seat or a puddle of blood dripping from your trunk.

Most cops who really have need for a terry stop will ask you to get out of the car and tell you that they want to search you for weapons.

But this usually isnt done by the good cop unless something shows up when he runs your license or they just happen to be looking for a car like yours that was involved in another crime.

The aberration is the cop who is pushing the envelope and demands your compliance. These guys are rare but they are also the ones who do the most damage.

Last edited by Joe33; 06-24-2016 at 08:47 AM..
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Old 06-24-2016, 09:14 AM
 
Location: Cape Cod
11,649 posts, read 8,158,888 times
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When this is all said and done I hope you learned your lesson and will mind the rules of the road. We have so many people who are distracted on their phones, high or drunk that it is getting really dangerous out there without having to worry about a reckless driver.

If you have nothing to hide why not consent to a search and be on your way but it is within your rights to say no.
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Old 06-24-2016, 09:21 AM
 
1,168 posts, read 769,544 times
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Quote:
Originally Posted by Cape Cod Todd View Post
When this is all said and done I hope you learned your lesson and will mind the rules of the road. We have so many people who are distracted on their phones, high or drunk that it is getting really dangerous out there without having to worry about a reckless driver.

If you have nothing to hide why not consent to a search and be on your way but it is within your rights to say no.
If you think privacy is unimportant for you because you have nothing to hide, you might as well say free speech is unimportant for you because you have nothing to say.

Since you have nothing to hide, Why dont we just come and take a look in your house. Read some of your daughters diary, Go thru your search history. Take a good look at what books you have on your book shelf. Look in your underware drawer. Read your love letters to your wife.Dont worry, we will do it fast as long as you let us and we dont find anything that interests us.
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Old 06-24-2016, 09:54 AM
 
Location: The Commonwealth of Virginia
650 posts, read 365,829 times
Reputation: 962
Quote:
Originally Posted by Joe33 View Post
This is not correct. They can do a Terry search which is of your person. Thats it.

From Wikipedia:
Quote:
The name derives from Terry v. Ohio, 392 U.S. 1 (1968), in which the Supreme Court of the United States held that police may briefly detain a person who they reasonably suspect is involved in criminal activity; the Court also held that police may do a limited search of the suspect's outer garments for weapons if they have a reasonable and articulable suspicion that the person detained may be "armed and dangerous."
That speaks to my original question...if I'm cited for "Reckless Driving," which in Virginia is a misdemeanor, is it reasonable to suspect that I'm involved in "criminal activity"? Enough so the cop can do a "Terry search," or search my car? Is going, say, 21 mph over the speed limit enough to warrant suspicion that I'm "armed and dangerous"? if so, there would be a LOT of people on the DC Beltway getting patted down.

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Old 06-24-2016, 10:06 AM
 
1,168 posts, read 769,544 times
Reputation: 1418
Quote:
Originally Posted by Bill790 View Post
From Wikipedia:


That speaks to my original question...if I'm cited for "Reckless Driving," which in Virginia is a misdemeanor, is it reasonable to suspect that I'm involved in "criminal activity"? Enough so the cop can do a "Terry search," or search my car? Is going, say, 21 mph over the speed limit enough to warrant suspicion that I'm "armed and dangerous"? if so, there would be a LOT of people on the DC Beltway getting patted down.

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They always think you are armed and dangerous. A terry Search requires no suspicion of any criminal activity. Just officer safety.

Getting a ticket for reckless driving is a vehicle code violation that may be a misdemeanor. According to the supreme court they can give you a ticket and that is it. They need not just suspicion but some sort of tangible evidence to search your car legally. Unless they arrest you then they can search the car.

This isnt going to stop them from searching your car thou. But is will get any evidence thrown out of court if they do find anything and they searched without your permission.

You also have standing to sue them for damages.

But unfortunately the law these days is far from clear.

Always say no but there is not much you can do at the moment of search.
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Old 06-24-2016, 10:17 AM
 
Location: Florida
3,237 posts, read 4,549,514 times
Reputation: 9682
Quote:
Originally Posted by Joe33 View Post
If you think privacy is unimportant for you because you have nothing to hide, you might as well say free speech is unimportant for you because you have nothing to say.

Since you have nothing to hide, Why dont we just come and take a look in your house. Read some of your daughters diary, Go thru your search history. Take a good look at what books you have on your book shelf. Look in your underware drawer. Read your love letters to your wife.Dont worry, we will do it fast as long as you let us and we dont find anything that interests us.


Taking the easy way out and letting the cops skip due process isn't the right way to do things. As much as they don't like it, they need to be held accountable as well.

If the cops mess up and are sued, they don't pay the price, the union is there to protect them. It's the taxpayers who end up losing as it's tax dollars that pay the lawsuits. It's probably the liability insurance that pays the lawsuits but the premiums are paid with tax dollars.
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Old 06-24-2016, 10:53 AM
 
Location: Chattanooga, TN
2,791 posts, read 3,878,065 times
Reputation: 4296
Reckless driving is more than a standard driving infraction. It's considered a real crime in most states because you are a danger to other people. In some states you can be physically arrested (taken to jail and booked) for reckless driving.

So yes, if criminal activity is justification for a search (it is), and reckless driving is considered a criminal activity (it can be), then a search after being stopped for reckless driving is legal.

As for searches for non-criminal stops, all it takes is probable cause. So bring on the drug dogs, and ignore the fact that many innocent people's cars will fail a drug sniff test. Ignore the studies that show how the majority of cash is contaminated by drug residue (it gets spread around in counting machines), or maybe a friend smoked a joint before you gave him a ride (scent on clothes transferred to seats), or any number of things.
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