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Posted on 06/10/2007 12:34:45 AM PDT by amchugh
We consider the Fourth Amendment’s limits on the use of trickery and force in conducting seizures. Facts Ascension Alverez-Tejeda and his girlfriend drove up to a traffic light. As the light turned green, the car in front of them lurched forward, then stalled. Alverez-Tejeda managed to stop in time, but the truck behind him tapped his bumper. As Alverez-Tejeda got out to inspect the damage, two officers pulled up in a police cruiser and arrested the truck driver for drunk driving. The officers got Alverez-Tejeda and his girlfriend to drive to a nearby parking lot, leave the keys in the car and get into the cruiser for processing. Just then, out of nowhere, someone snuck into their car and drove off with it. As the couple stood by in shock, the police jumped into their cruiser and chased after the car thief with sirens blaring. The police then returned to the parking lot, told the couple that the thief had gotten away and dropped them off at a local hotel. The whole incident was staged.
(Excerpt) Read more at ninthcircuitopinions.com ...
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The Wired article pointed out, how is the couple expected to be able to assert their rights concerning a search if they don’t even know one is happening?
A friend who recently retired from the local police force after 30 years used to complain to me that the courts and jails were so jammed up that their operating procedures for arresting drug dealers were changed accordingly. It used to be that they only needed 1 undercover buy to establish a drug house or a drug dealer. Then it went to 2 buys, then 3 buys, and finally 4 buys. Less than 4 buys were considered "inadequate" to establish a pattern of drug dealing. As a ride-long with him, I witnessed officers finding grass on people and just throwing it into the wind to get rid of it so they didn't have to do the paperwork, and see the perp back on the street before they got their paperwork done.
I guess other jurisdictions have more jail space and go all out to get on the scoreboard. This story sounds like The French Connection on a smaller scale.
It’s better to have no laws than dope.
Supposedly a spy in a drug ring was in danger of being outed.
Had the couple insisted on staying with the car as they spoke with police, they probably would have been allowed to go.
It’s the Ninth Court of Appeals. What did you expect, a reasonable decision? /s
Nope, appears not. But, they still got some drugs off the street. They'll have to nail these drug dealers another day. I wonder if the corvette was siezed? Might be worth going to the auction.... I have no sympathies for kid killing drug dealers, and it's too bad they aren't in prison- All because the cops didn't follow the rules.
They killed kids too? Man, I better re-read the article.
Bad decision.
Any evidence gathered through ILLEGAL activity (in this case, theft of the car), even if performed by the police, should NEVER be used as evidence at trial.
For example, if a person is operating an illegal internet pharmacy, the government can initiate a civil lawsuit under the licensing statutes to get the operator to shut down. They can make full use of the civil rules of discovery (i.e., depositions, interrogatories, etc.) and even force the civil defendant to testify at trial. While the defendant can still assert his 5th Amendment rights, that is of little consequence. After obtaining the evidence it needs, the government can then proceed with a criminal prosecution.
What happened in this case was that the government used the civil forfeiture statutes, which allows seizure upon demonstration of probable cause of drug usage. No warrant need be issue by a judge because the probable cause determination is made by law enforcement officers. If a civil court later determined that no probable cause existed and returned the vehicle to the defendants, this evidence would surely have been excluded in a criminal prosecution. Since there was adequate probable cause, the seizure is deemed lawful and the evidence stays in.
The only issue for the Court here was whether staging a fake auto theft was too extreme. Given the need to protect a source, the Court correctly determined that it was not.
If the police had had a warrant, the search could have been conducted, and the entire well-performed skit used to protect the identity of the informant as well.
I would have no problem with that if a warrant had been obtained beforehand--in fact, I would commend the officers for a well-run operation.
As is, I am danged skeptical of a 'Mission Impossible' type operation conducted without regard for the law, even if the ends supposedly justified the means.
For the record, I am danged anti-drug, too.
There are, however rules for the conduct of searches, rules which should be delineated by the Bill of Rights, and which apparently keep getting bent to our mutual loss.
If our rights are not held sacrosanct for all citizens, then no citizen will have any rights.
They have been enshrined in the Constitution to protect the citizenry from the overzealousness and possible corruption of the forces which should exist to protect those rights, and not diminish them. In this case, the LEOs went too far.
Just my $0.02, YMMV.
What happens if they try something like this and no drugs are found? Can the owner of the vehicle then press Grand Theft Auto charges against the LE officers involved?
If a cop suspected drugs were in your car, would you rather he ask for a search/obtain a search warrant, or steal your car in order to look inside?
This sets a dangerous precedent, IMO.
The article doesn’t say that they didn’t have a warrant.
Had the couple insisted on staying with the car as they spoke with police, they probably would have been allowed to go.Could they have done that? Are you allowed to refuse to get out of the car? I guess it depends on the jurisdiction and the situation. If you're suspected of drunk driving (which this driver wasn't), you certainly can't refuse to get out of your car. But what about in general? Can you really say, "no, officer, I don't want to get out of my car"?
The article doesn’t say that they didn’t have a warrant.
Appeals Court Rules Cops Can Steal Cars and Lie to Victims To Conduct a Warrantless SearchThe planning for this "operation" must have taken longer than it would have taken to get a warrant. I think this was a test by the cops. Let's see how well we can get along cutting the judge out of the loop.
Right. So they seized the car first, then got a warrant, then searched it.
I still don’t get it. Why not just get the warrant in the first place? Is it hard to get warrants in drug cases? Surely not.
I think this was a test. The cops testing the waters. How to gradually move judges aside and do the whole thing themselves. And these judges played right into their hands.
Looks like judges aren’t as smart as they think they are.
Read my post in #14 - that should answer your question as to why this was okay under the Constitution.
Again, this is a perfectly valid civil action on behalf of the police. Now search warrant is needed. It was proper and wholly within the confines of the Constitution.
If I am a drug dealer, of course I do not want the police searching my car. But if I'm a law-abiding citizen and learn that a misunderstanding had occurred, I'd let it go. But that's just me, I suppose. I believe that there may be some civil legal recourse against the police, but I'm sure they'd settle quickly and quietly so as not to alert others of this method of operation.
But now that the precedent is established, it won't take much for a few corrupt LEOs to cash in on the GTA gravy train by claiming they had reason to believe the car was being used to transport drugs....etc., so they stole it to prevent compromising an "ongoing investigation".
Oh, that's right, they can do that already without the charade. What Fourth Amendment? It has been reduced to buttwipe.
GreatOne, you’ve done a great job of parroting what the cops said. But they had to say something, right? They couldn’t come right out and say “we’re doing a little experiment here, seeing how we can remove ourselves from judicial oversight”. Could they now?
So yes. There are stated reasons. They already stated them. The court accepted them. And you have restated them.
I remain skeptical. If this was a terror case I would be much more prone to give the cops the benefit of the doubt. But in drug cases there have been too many breaking down of the wrong doors, and too many instances of cops gone wild.
In drug cases, get a damn warrant or leave the public alone.
And I am NOT one of the RonPaul/Libertarian/pot-smoking posters around here who’s always moaning and complaining about the war on drugs.
The war on drugs is fine. Just get a damn warrant first.
And by the way, GreatOne, how is the cops stealing your car a CIVIL action?
They are officers of the government. They steal your car.
Explain the CIVIL aspects of that.
Reductio Ad Absurdum:
The cops can now show up outside your home with a crane, steal your house off the foundations, take it down the street to a secluded spot and search it.
There are a variety of reasons why this was quite lawful and Constitutional.
Plus, we get the added benefit of drugs off the street, dealers and their mules behind bars, and no undercover cops shot.
I’m not sure how to take this and conclude it was OK for the police to stage an accident and steal an individual’s car, without a warrant. Then again, this is America and we need judges to explain what the plain text of the constitution means.
“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.”
This is bizarre.
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Our legal system has developed to handle violations of driving regulations in both a civil manner and a criminal manner. The best example of this is drunk driving - when someone is arrested for drunk driving (and I believe it is true in every state), the criminal proceeding deals with the punishment for the offense - i.e., whether they do jail time, what the fine is, whether they need to undergo counseling or abstain from further alcohol consumption, etc.
At the same time this is going on, a civil process is occurring, which deals with the offender's license and, for successive offenses, with the offender's license plates and forfeiture of the vehicle itself. This is generally handled by the state DMV, and the judicial process has no control over it (i.e., a court cannot prevent a convicted offender's license from being suspended or revoked).
As this applies to drug offenses, states have created laws which allow law enforcement to seize a suspected drug trafficker's vehicle is law enforcement has probable cause. Probable cause is the standard of evidence required to arrest and/or bring criminal charges against someone. Since this is in the civil process, law enforcement DOES NOT have to obtain a search warrant or other similar court order; whether they had sufficient probable cause to seize the vehicle comes into play at the forfeiture hearing (after the vehicle is seized, the offender still gets a hearing).
In this case, law enforcement had probable cause to believe that the vehicle was engaged in drug trafficking, and thus the ability to civilly seize the offender's vehicle. Because of the nature of the situation, where they did not want to tip off the offender's co-horts, they staged an elaborate ruse, which in reality is no different than law enforcement lying during interrogation (we found the gun with your prints on it, we have an eyewitness who saw you there, etc.). Situations like this can also be concocted for the purpose of peacefully seizing a vehicle in other situations. Once law enforcement had the vehicle, they obtained a criminal search warrant because they believed that the vehicle presently had drugs in it. Whether they would have actually needed one is questionable, but any prosecutor worth their salt would have obtained one to ensure it didn't get tossed. But the key point is the warrant would only be to search the vehicle, not to obtain it.
Thus, this issue needs to be looked at through a civil lense, not a criminal lense. Again, every state allows for civil actions in this fashion, and the 4th Amendment has NOTHING to do with this situation relating to the seizure of the vehicle. The appeal was limited solely to the issue of whether the ruse was too outrageous. Since no one was hurt and it occurred peacibly, the Court correctly said it was okay. The Court also clearly stated that it would at these situations on a case-by-case basis.
I hope that I have adequately explained this. You can say that you still don't like it, and that's fine. My state's Supreme Court dealt with this issue and specifically held that there is a distinction between civil and criminal matters, and that evidence obtained by the state in a civil matter can be used against that person in a subsequent criminal action. I'm sure each of yours has, too.
...the 4th Amendment has NOTHING to do with this situation relating to the seizure [of someone's property]...You're sure about that. 4th Amendment. Seizure of property. No connection.
That's your story and you're sticking to it?
I do believe you wrote a thorough analysis of the situation, as viewed by the cops and the courts. But they, as well as you, have left a few things out.
First of all, they already knew the car was being used to transport drugs and they already knew that the higher-up was the owner or somehow connected to that car.
They say that they had to get proof that the car had the drugs without alerting the higher-up, presumably (although they don’t really even say this) so they could then go after the higher-up with yet another warrant (not the warrant to search the car but yet another warrant for some other location).
What they don’t say, and what you don’t mention, is this:
If they knew all that stuff, why didn’t they just take what they knew to the judge and ask for a warrant to search everything all at once, both the car and the higher-up residence (or whatever)? If they had enough information to make the connection in the first place, it would be enough information to get them a warrant.
Judges are not hard to get warrants from. It’s what judges do.
I don’t think you or they have made the case of why, in this particular instance, they had to play a game that involved NOT going to a judge first when they had as much information as they claimed to have.
Again, if it was a terror case, I would say: good work boys, don’t involve the judges if you don’t have to.
But in a drug case I’m not as willing to say that.
And by the way, they didn’t seize the car, they STOLE it. Seizing is an official act, done by proper authorities, who identify themselves and the reason they are seizing property.
There is noting CIVIL about stealing a car.
I can credit your argument as being a correct description of the current legal environment.
And I find it tragic.
Government siezures of property have nothing to do with the constitution.
What a truly sad and frightening thing.
Any judge that thinks this kind of warrantless search is ok should be immediately impeached and possibly exiled from the country.
Nothing is worse than corrupt law breaking cops. Not rapists, murderers, child molesters, or politicians who sell out our sovereignty. Once the cops go bad... all bets are off for all of the above. Corrupt cops should get the death penalty.
Your editorial title is false - there was no warrantless search. A warrant was obtained before the car was searched. The car was seized with an elaborate trick to avoid tipping off the perps that they were under suspicion. The claim in the case was that the seizure was unreasonable.
I stand corrected. However, the basic tenant of my argument remains correct - that we have to look at this in the context of a civil action and not a criminal one.
See post #45. I stand corrected (partially).
They needed to seize the vehicle first because if they had obtained a search warrant, then they would have had to notify and/or arrest the defendant. Doing that would tip off the defendant's co-horts that the cops were onto them. The police were using the drugs found in the car to go after these 3rd parties as well as the defendant.
By seizing the car first, then obtaining the search warrant, they could delay giving the warrant to the defendant until after they had located the drugs, and until after they had rounded up other people based upon their finding the drugs in the car.
There isn’t an appellate court in the land (state or federal) that has struck these laws down as unconstitutional. While unanimious thought doesn’t always equal correctness, after reading a few of the cases I believe it does.
I don't necessarily disagree with you. However, keep in mind that when the government seizes something in a civil matter, the defendant still has the right to a court hearing to determine the validity of the seizure, and if the government is found to be in the wrong, they can be penalized. Since it's not an absolute seizure without judicial review, it's been allowed.
The car was also not seized until after they had searched it. The car was stolen. When somebody forcibly takes your property without a warrant or some kind of court order, it is theft.
Everyone try to remove the word “drugs” from your mind. Once you have regained common sense, reread the article and tell me if you still think its OK for our LE to engage in criminal activity in order to accomplish a certain outcome.
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