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  1. #1
    Join Date
    Jan 2009
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    Post Evasion and Search and Seizure

    My question involves police conduct in the State of: KS

    Recently a friend of mine and few few of their friends decided it would be fun to get high and take a drive, which was idiotic, but they were driving down a road in Kansas and saw an officer pull out of a neighborhood behind them. He turned on his lights and, the driver being high decided to turn into the next neighborhood to see if he could lose him. The cop turned in behind them and he pulled over immediately because he lost his nerve.

    When asked why he turned into the neighborhood, my friend said that he was simply nervous. The cop then told them all to get out of the car. He asked the driver for permission to search the car, and the driver said no. The cop claimed he had probable cause for their one-turn "evasion" and searched the car anyway.

    The cop found marijuana in the purse of one of the people in the car and detained and took her to jail for the night.

    My question is: What exactly constitutes an evasion, and is that probable cause for a search, and in a search of a car, is an officer allowed to search personal effects of individuals other than the driver left in the car?

  2. #2
    Join Date
    Aug 2007
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    3,835

    Default Re: Evasion and Search and Seizure

    Quote Quoting ca1305t8y
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    When asked why he turned into the neighborhood, my friend said that he was simply nervous. The cop then told them all to get out of the car. He asked the driver for permission to search the car, and the driver said no. The cop claimed he had probable cause for their one-turn "evasion" and searched the car anyway.
    What was facially stated is not a constitutional reason to search the car, no.

    I suspect it was something else. Without consent; 1. An arrest must be made first, and then a search can take place as "incident to arrest"; 2. If he smelled MJ, this most probably gives him authority to search the passenger compartment and probably even the trunk in most jurisdictions; 3. If he saw MJ is "plain view/plain sight" it also gives him PC to search.

    The cop found marijuana in the purse of one of the people in the car and detained and took her to jail for the night.
    Since the Hash was found, it appears his PC was valid if based on 2 or 3.

    My question is: What exactly constitutes an evasion, and is that probable cause for a search,

    An Evasion definition has no bright line time for a driver to pull over. In other words if he takes 30 seconds instead of 10 and so on... From facts described, and admission, he evaded police. For PC, see above..

    ...and in a search of a car, is an officer allowed to search personal effects of individuals other than the driver left in the car?
    This SC case outlines such.

    Held: Police officers with probable cause to search a car, as in this case, may inspect passengers’ belongings found in the car that are capable of concealing the object of the search.


    http://supct.law.cornell.edu/supct/html/98-184.ZS.html

    Your state constitution probably permits this also, it is doubtful it does not, but possible? As we see, WY, at that time, at least, did not permit it, with exceptions:

    In reversing, the Wyoming Supreme Court ruled that an officer with probable cause to search a vehicle may search all containers that might conceal the object of the search; but, if the officer knows or should know that a container belongs to a passenger who is not suspected of criminal activity, then the container is outside the scope of the search unless someone had the opportunity to conceal contraband within it to avoid detection. Applying that rule here, the court concluded that the search violated the Fourth and Fourteenth Amendments.


    It was appealed to the USSC due to the fact WY ruled it violated the 4th AM, thus giving the USSC jurisdiction to hear it. The SC ruled it did not, BUT it still violates the WY constitution, unless the WY SC reversed themselves later.

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