Arrest, Search, Seizure, Warrant Unreasonable Search and Seizure. PLAIN SIGHT???

[jboey901]

I live in Lincoln, Nebraska. A friend and i were in an apartment parking lot at 1130 pm. His car was parked next to mine and we were sitting in my car, I was in the driver seat and he was in the passenger. we had a bong that had marijuana in the bowl of the piece that was unsmoked. He then saw the cop car start to pull in the parking lot and he set the bong on the seat and walked over to his car. the cop pullled up and was asking him questions while i was still in my car and i put the bong on the floor in the back seat and attempted to cover it with a blanket.
the cop asked my friend if he had anything in his car and
he said yes he had an almost empty bottle of crown royal.
the cop didnt look for it yet, but told him to go stand by the squad car so he could talk to me, still seated in my car.
the cop asked for my info and i complied. he asked if i had anthing illegal in the car and i denied. he then asked if he could search the vehicle and i told him that i did not give him consent to. he then asked if i would get out of the car and talk with him.
at first i said i really needed to get home and didnt see the point in all of that. he told me is was a suspicious scene and then asked again if i could get out and talk. i then complied and got out and shut my door, both of them being closed.
he then patted me down and found nothing and told me to go stand by my friend. i did so. he then walked around my car with his flashlight, did not find anything on the driver side, then went to the passenger side and saw the partially covered bong. he then opened my door and set the bong on the top of my car and walked over to me explaining he could take it under "plain view" ruling.
how can this be a reasonable search and seizure? what illegal did he see in plain view? the pipe itself is not illegal and in no way can be looked at as illegal unless associated with a controlled substance, which he also couldnt do from just plain sight right?
i was charged with possesion of marijuana(in the bowl) as well as paraphernelia. can i get this dropped?

 

[CdwJava]

Your attorney can make a motion to suppress, though I suspect it will not work.

The officer will likely be able to articulate that based upon his training and experience the bong is commonly (solely?) used for the ingestion of illegal substances, so that gave him reasonable suspicion to investigate further. When he retrieved the bong he found the marijuana in the bowl.

Bottom line - don't do drugs in open parking lots. Next time, go into his apartment ... and if he does not live there, don't be doing dope in a parking lot where you are trespassing!

- Carl

 

[jboey901]

i have not recieved the police report yet being that it just happened the other day, but i just have some stuff i am not clear on per say.

how can i, the first party, be susceptible to the implied actions of the second party, people found lawfully guilty of smoking?
-also after cooperation and a terry pat down, how can this give him justified reason to make that assumption that the water pipe was being used illegally?

A few things i looked up

"The plain view doctrine permits police officers to seize an object without a warrant if they are lawfully in a position from which they can view the object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object"
-what about its character is immediately apparent and incriminating as a crime?
what does it mean by lawful right of access?

"The legality of a seizure under the plain view doctrine depends upon the incriminating character of an object being immediately apparent. There need not be certainty in that regard, but reasonable suspicion is not enough."
-not enough?

"The test to determine whether an investigative stop is justified is whether the police officer has a reasonable suspicion based on articulable facts which indicate that a crime has occurred, is occurring, or is about to occur and that the suspect may be involved. An officer is not required to wait until a crime has occurred before making an investigatory stop. It is sufficient if there is an objective manifestation that the person stopped is, has been, or is about to be engaged in criminal activity. State v. Rein, 234 Neb. 917, 453 N.W.2d 114 (1990)."
-reasonable suspicion based on articulable or clear FACTS which indidcate... so on and so forth. would he have to present these facts in some way for it to hold?

 

[CdwJava]

how can i, the first party, be susceptible to the implied actions of the second party, people found lawfully guilty of smoking?
-also after cooperation and a terry pat down, how can this give him justified reason to make that assumption that the water pipe was being used illegally?

If you are both found in constructive control (also referred to as possession) of a device used to ingest drugs, you can both be described.

Yes, your attorney CAN argue that the bong is - by itself - a legal device ... however, even i he manages to do so with a straight face, unless the officer is a complete rookie or incapable of coherent speech, he will likely articulate that through his training and experience such a device is used to ingest drugs - specifically, marijuana. He may also articulate that he smelled marijuana ... and, yes, marijuana wreaks - even if unsmoked. And if you had smoked in the car any time recently, it likely wreaked, too. These things together can generally suffice to give good cause to search. Whether it will in this case will depend on a number of factors that we do not know.

"The plain view doctrine permits police officers to seize an object without a warrant if they are lawfully in a position from which they can view the object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object"
-what about its character is immediately apparent and incriminating as a crime?

That it is a device commonly used to smoke marijuana. Combine that with the apparent attempt to conceal it, the likelihood of the odor of marijuana, the time of night, and being in a parking lot of an apartment complex you did not live in will add to the cause.

what does it mean by lawful right of access?

It means they can't kick in your door or gain "plain view" by entering someplace unlawfully.

"The legality of a seizure under the plain view doctrine depends upon the incriminating character of an object being immediately apparent. There need not be certainty in that regard, but reasonable suspicion is not enough."
-not enough?

They need more than just a suspicion that the item contains contraband. As I said, if the officer has any experience at all, he can articulate all those things that WILL give cause for the search. Ultimately, it will be up to the status of the law in your state. Your state may not be the same as mine ... though CA is in the 9th Circuit, and thus we tend to be rather pro-criminal when it comes to federal interpretation. So, if it is likely legal here, it is likely legal there.

Your attorney can tell you the strength of any suppression argument after he reads the police report. I know I would have little difficulty articulating good cause, but your officer may not be as eloquent as I.

-reasonable suspicion based on articulable or clear FACTS which indidcate... so on and so forth. would he have to present these facts in some way for it to hold?

See above.

- Carl

 

[jboey901]

Still have not seen the police report but my friend that was with me, his dad was a cop and made some suggestions and one caught my attention.

this is fighting the fact that the cop had reason to ask for our i.d.'s and make a stop.

the cop was not called in, being that 1. we hadnt even smoked yet and 2 we were only there for maybe 5 minutes.

question. does the lot have to be marked as private property? does just the fact that it was an apartment parking lot give the cop enough reason to make a stop, even though he doesnt even know if we live there.

also like i said before the cop asked what we were doin there, which is a valid question. my friend answered that he was dropping his car off and getting into mine because his muffler was broken and didnt feel safe driving(this is true and he just got it fixed yesterday and has a warranty reciept for the fixed part.) the cop seemed to pay no attention to this and didnt even look to see if the muffler was in shambles, which it clearly was.

does all of this still warrant the cop to make a stop/ask for id/etc.?

 

[CdwJava]

this is fighting the fact that the cop had reason to ask for our i.d.'s and make a stop.

The police are paid to contact people in situations that are suspicious. The public expects them to ask questions.

Yes, he had every right to be there and ask any questions he wanted. Asking questions is not a detention. Even if he had ordered everyone to stay put, it is not that difficult to articulate reasonable suspicion for a detention in the circumstance you describe.

question. does the lot have to be marked as private property? does just the fact that it was an apartment parking lot give the cop enough reason to make a stop, even though he doesnt even know if we live there.

He did not MAKE a stop ... you were already stopped.

And, no, the property does not HAVE to be marked as private property for the police to make contact. It might have to be marked if they were to charge you with trespassing, but that really depends on the laws in your state.

the cop seemed to pay no attention to this and didnt even look to see if the muffler was in shambles, which it clearly was.

He did not have to. You were not charged with trespassing, so the issue was moot. There is no law that says once a plausible explanation is provided the police have to cease any inquiry.

does all of this still warrant the cop to make a stop/ask for id/etc.?

Sure.

- Carl