Nice Texas bill, one problem, LEO' dont want it.

[Vernal45]

No ‘Fishing’ Stops: Bill would restrict warrantless searches
April 22,2005
The Monitor View

State Sen. Juan "Chuy" Hinojosa has offered a bill that seeks respects for Texans’ constitutional rights. Hinojosa, D-McAllen, filed Senate Bill 1195 to curtail law enforcement agencies’ fishing expeditions during traffic stops, which have become a matter of habit for some police and sheriff’s departments.

Simply put, the legislation says an officer may not ask to search a vehicle just to see what he or she might find. The request for a search must be based on a reasonable belief that the search will turn up some evidence of a crime.

As Hinojosa pointed out in The Monitor, because law enforcement agencies can confiscate suspected "drug money," officers are more interested in the cash they can seize than illicit substances. The senator also filed a bill to bring the South Texas Specialized Crimes and Narcotics Task Force to work under direction of the Texas Department of Public Safety.

The senator filed this bill, it turns out, after getting pulled over last fall by officers with the Kingsville anti-drug task force in what Hinojosa claims was a case of racial profiling. The legislation raised claims of retaliation and strong protests from police officials and prosecutors, who say the restriction would impede their efforts to enforce the laws.

That’s a strange assertion, since the bill does exactly that — it reinforces the Fourth Amendment of the U.S. Constitution, which specifically states that the right of the people and their possessions against unreasonable searches and seizures shall not be violated. To routinely ask to search vehicles on simple traffic stops, when no evidence of a crime is visible, clearly is unreasonable.

Granted, people don’t have to consent to unwarranted searches, and law enforcers make that point to defend the practice. But many individuals who get pulled over don’t know they have that right. Some who do know still consent to the searches rather than give the impression that they have something to hide. Even with the law on their side, some might feel too intimidated to refuse a search request by a uniformed officer with a gun.

"Every citizen has the constitutional right to liberty without fear or harassment," Hinojosa said in The Austin American-Statesman. "I am concerned that others in my community, however, are subjected to undue harassment because they are unaware they have the right to say no to an invasion of their privacy."

Our Constitution protects people against unreasonable searches. Police do not have the right to search anyone’s property without a warrant. Even if the officer states detailed and specific reasons why he or she believe the search will provide evidence of a crime, the owner still has the right to insist that the officers get a warrant.

It’s unfortunate that so many Americans aren’t aware of their rights, or are too afraid to assert them. Ideally, widespread public refusal to unwarranted searches would curtail the practice without the need for the type of legislated controls that Hinojosa rightly believes is necessary.

http://www.themonitor.com/SiteProcessor.cfm?Template=/GlobalTemplates/Details.cfm&StoryID=6841&Section=Opinion


S.B. No. 1195

A BILL TO BE ENTITLED


AN ACT


relating to the authority of peace officers to conduct certain
searches.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Article 1.06, Code of Criminal Procedure, is
amended to read as follows:
Art. 1.06. SEARCHES AND SEIZURES. (a) The people shall be
secure in their persons, houses, papers and possessions from all
unreasonable seizures or searches. No warrant to search any place
or to seize any person or thing shall issue without describing them
as near as may be, nor without probable cause supported by oath or
affirmation.
(b) A peace officer who stops a motor vehicle for any
alleged violation of a law or ordinance regulating traffic may not
search the vehicle unless the peace officer:
(1) has probable cause or another legal basis for the
search; or
(2) obtains on a form that complies with Section
411.0207, Government Code, the written consent of the operator of
the vehicle.
SECTION 2. Subchapter A, Chapter 411, Government Code, is
amended by adding Section 411.0207 to read as follows:
Sec. 411.0207. GUIDELINES FOR FORMS INDICATING CONSENT TO
VEHICLE SEARCH. (a) The director by rule shall establish
requirements for a form used to obtain the consent of the operator
of a motor vehicle under Article 1.06, Code of Criminal Procedure.
(b) At a minimum, the rules must require the form to
contain:
(1) a statement that the operator of the motor vehicle
fully understands that the operator may refuse to give the peace
officer consent to search the motor vehicle;
(2) a statement that the operator of the motor vehicle
is freely and voluntarily giving the peace officer consent to
search the motor vehicle;
(3) the time and date of the stop giving rise to the
search;
(4) a description of the motor vehicle to be searched;
and
(5) the name of each peace officer conducting the stop
or search.
SECTION 3. The director of the Department of Public Safety
of the State of Texas shall adopt the rules required by Section
411.0207, Government Code, as added by this Act, not later than
December 1, 2005.
SECTION 4. (a) Except as provided by Subsection (b) of
this section, this Act takes effect September 1, 2005.
(b) Article 1.06, Code of Criminal Procedure, as amended by
this Act, takes effect January 1, 2006.




Trucker Buddy International



Trucking News Article

Our news is provided as a courtesy Of OOIDA / Land Line Magazine
Used with permission. Unauthorized Use or Duplication Is Prohibited
Texas legislature debates limits on police search rights
04/22/2005 - 2:50:45 am

Law-enforcement officials and civil liberties groups are butting heads over a proposed bill in Texas that could give privacy back to drivers and take authority away from the police.

The bill, SB 1195, would stop police from performing consent searches without probable cause. The author of the bill, Sen. Juan Hinojosa, D-Mission, told the San Antonio Express-News that the current law encourages racial profiling and intimidation of drivers.

“It is happening a lot all over Texas because people do not know they have the right to refuse, or because they are intimidated and threatened with arrest,†Hinojosa told the Express-News. He added that officers shouldn’t be allowed to ask drivers for search consent where probable cause doesn’t exist, because the resulting search should be illegal anyway.

Opponents of the bill say the measure would limit officers’ reach in cases where it could be beneficial. However, Texas Municipal Police Association representative Tom Gaylor said that “the vast majority of the time, we found nothing†that would lead to an arrest, the Express-News reported.

“A good police officer never stops asking questions, and no, the sky is not going to fall (if the bill passes), but we will lose a good tool that helps us do our job,†San Antonio Police Lt. Rosalinda Vasquez told the state Senate’s Criminal Justice Committee.

The committee has so far not taken action on the bill.
http://www.truckflix.com/news_article.php?newsid=2345

 

[HighVelocity]

Even though it is within your right to refuse a search, you'd better be prepared to spend the rest of the day (or night) sitting on the side of the road in the back of the patrol car while the entire squad stands on the shoulder talking about it.
The way I understand the Bill, this is a good thing for Texans.

 

[Vernal45]

Even though it is within your right to refuse a search, you'd better be prepared to spend the rest of the day (or night) sitting on the side of the road in the back of the patrol car while the entire squad stands on the shoulder talking about it.

Thats BS, but it will happen. The longer you sit, the bigger the future gun collection gets. And here I thought Cops were on the same side as us serfs. The only ones I read that are against this, SURPRISE, LEO's. Why is that?

 

[DMF]

Well let's look at the reality of consent searches:

http://caselaw.lp.findlaw.com/data/constitution/amendment04/04.html#1

"But consent will not be regarded as voluntary when the officer asserts his official status and claim of right and the occupant yields to these factors rather than makes his own determination to admit officers."

Meaning they can't threaten to make your life miserable in an effort to pressure you into consenting.

Let's also consider the reality of detentions, lest anyone HighVelocity's post is the real story regarding refusing consent:

http://caselaw.lp.findlaw.com/data/constitution/amendment04/01.html#6

"The Fourth Amendment applies to ''seizures'' and it is not necessary that a detention be a formal arrest in order to bring to bear the requirements of warrants or probable cause in instances in which warrants may be forgone. 60 Some objective justification must be shown to validate all seizures of the person, including seizures that involve only a brief detention short of arrest, although the nature of the detention will determine whether probable cause or some reasonable and articulable suspicion is necessary."

Guess what? Refusing to consent to search is not "objective justification" for a detention. The cops will need something else, unless of course they want to get sued, or prosecuted for violating a person's 4th Amendment rights.

In the links provided, the numbers within the text link to footnotes, with the legal references, which further link to actual court decisions to provide the expanded legal explanations.

The State Senator may not like consent searches, and is free to try and legislate more regulation with regard to officers seeking consent to search, however, it's a lie to say the bill, "seeks respects for Texans’ constitutional rights," or that it, "it reinforces the Fourth Amendment of the U.S. Constitution." The fourth amendment is not affected by someone voluntarily waiving the protections of the amendment and giving consent to search.

 

[Vernal45]

Meaning they can't threaten to make your life miserable in an effort to pressure you into consenting.

Then why does it happen any way?

Guess what? Refusing to consent to search is not "objective justification" for a detention. The cops will need something else, unless of course they want to get sued, or prosecuted for violating a person's 4th Amendment rights.

Yet they intimidate, coerce you into consenting. This Bill is designed to stop that. Making the officer, in writing inform the citizen that they do not have to consent to a vehicle search. Think about it, LEO's helping citizens understand their rights, novel thought, cops helping citizens.

The fourth amendment is not affected by someone voluntarily waiving the protections of the amendment and giving consent to search.

It does when the LEO intimidates/coerce the citizen into consenting, which happens all the time. No more fishing, you can get a license if you want to fish. The way it should be.

 

[DMF]

You know Vernal it would help if you had actually read some of the links I provided.

Then instead of making comments like this: "Yet they intimidate, coerce you into consenting," and this, "when the LEO intimidates/coerce the citizen into consenting." Attempts to intimidate or coerce invalidate the consent. If you had actually read some of the links I provided, rather than choosing to remain ignorant of the facts, and ranting based off emotion, then you would have read things like:

The Court, however, has insisted that the burden is on the prosecution to prove the voluntariness of the consent and awareness of the right of choice.

But consent will not be regarded as voluntary when the officer asserts his official status and claim of right and the occupant yields to these factors rather than makes his own determination to admit officers.

It doesn't happen "all the time," occasionally some cops get out of line, but as stated earlier they face both civil and criminal penalties if they do, and at the very least the results of a bad search will be suppressed at trial. There are protections in the system to punish those cops that violate the fourth amendment.

 

[Parker Dean]

I support this bill so far, barring further info, as it has become blatantly obvious to me that the emphasis on drug interdiction is to catch the Southbound money and not the Northbound drugs. DPS doesn't do this as much, but the local jurisdictions almost exclusively target Southbound traffic, with Robstown, Driscoll, and Kingsville verging on the absurd. I can't remember the last time I passed through Driscoll without seeing a traffic stop of Southbound vehicles having turned into an impoundment, and I pass through there vrtually every day. Hell, the tow truck sits there at a convenience store on the East side of the highway waiting for the next one.

I am beginning to form the opinion that money from "drug" seizures should not go to departments, or even governments. Perhaps it should go to a rotation of non-profit charities.

 

[orangeninja]

I am going to have to go publicly against this bill. "Fishing" if that's what you want to call is is also known as "police work" or "investigating". You have to have at least a reasonable suspicion to make a vehicle stop anyhow....when asking question's like this cops aren't jacking with you, they are reading your reactions. The humanity of police work must be present otherwise just put cameras everywhere and be done with it. Your rights are still protected under law and procedures are usually very VERY clear on your limitations as a LEO.

The street reality is that this type of stuff is the life blood for busting gang bangers, drug runners etc. And last time I checked you guys were fairly pro-anti-gangbanger Illegal MS13 types etc. It just so happens that drugs and gangs are magnatized to one another. Where there is one, another isn't far off.

These questions also protect police officers when asking questions like "do you have any weapons in the car" etc.

Now I could be wrong:

If what you have pasted above is correct the way I understand this being presented is:

1.) Every Terry Frisk must be documented either with a warrant or consent to search form?

2.) With a warrant you must prove probable cause (as per status quo).

3.) Without a warrant you must still have a consent to search with a form stating why you are doing so etc.?

Am I understanding this correctly?

 

[O.F.Fascist]

I concur completely with Parker Dean.

 

[orangeninja]

Okay upon re-reading....

There must be

1.) a consent to search form with: A.) Time listed B.) Date C.) Vehicle description D.) Statement of understanding rights E.) Name of Peace Officer.

I have no problem with any of the bill so far as it provides a paper trail. ONE area where I get stuck is

"b) A peace officer who stops a motor vehicle for any
alleged violation of a law or ordinance regulating traffic may not
search the vehicle unless the peace officer:
(1) has probable cause or another legal basis for the
search; or
(2) obtains on a form that complies with Section"

Which eliminates the ability to perform a Terry Frisk of a vehicle correct?

 

[nico]

they can't threaten to make your life miserable in an effort to pressure you into consenting.

But, are they allowed to inform you that they can get a warrant, which means you'll have to sit there for an hour or two? This happened to my dad and I've heard several stories of it happening to others. In my dad's case, he told the cop to go ahead and get a warrant and the cop relented, but I'd imagine that's not usually the case. Would this situation fall under this:

But consent will not be regarded as voluntary when the officer asserts his official status and claim of right and the occupant yields to these factors rather than makes his own determination to admit officers.

I think the bill is a good idea. As I've heard several times from the cops on this board, if they have a reason to search, they're going to do it anyway. Just because a person is ignorant of their rights or can be easily intimidated into giving them up doesn't mean they shouldn't be protected.

 

[Vernal45]

Then instead of making comments like this: "Yet they intimidate, coerce you into consenting," and this, "when the LEO intimidates/coerce the citizen into consenting." Attempts to intimidate or coerce invalidate the consent.

Yet these things do happen. The phrase "I can get a warrant" happens more often than you think. And, yes, safe guards are there, but that is not the point. The intimidation should not happen, period. During a tarffic stop, the question of "Can I search your vehicle" should not be SOP. This is a good bill, cops should document and inform citizens that they do not have to consent. Why are LEO's hating this, would it be a little power is restored to the citizens, like it is supposed to be.

 

[nemesis]

The way I understand the Bill, this is a good thing for Texans.

The way I understand it, it's a good thing for Hinojosa. Remember, he's my local Senador and one of Los Senadores que spends most of his time in New Mexico protesting the rights of the Texas Senate majority.

Ol' Chuy got stopped by Hispanic LEO's and protests that "racial profiling" was the reason. He'd be a lot happier if he could just do as he pleases and not have to be responsible to anybody."

Crap in Spanish is "mierde". The mindset amongst local elected officials, and that includes El Senador Juan Hinajosa, is that the law shouldn't apply to them. Just to us campesinos.

 

[DMF]

The phrase "I can get a warrant" happens more often than you think.

Actually telling some one you "can get a warrant" invalidates consent, because it falsely gives them the impression that refusing consent is futile. A cop can say "I'll go apply for a warrant," but they may not give the impression that getting a warrant is inevitable. To say, "I can get a warrant," will invalidate consent, make the search illegal, cause any evidence found to be suppressed, and expose the cop to civil and criminal liability.

You may want to actually read some of the information I provided earlier. If you had you would have eventually found a link to the decision in: Bumper v. North Carolina, 391 U.S. 543 (1968) http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=391&invol=543

In Bumper the Supreme Court ruled that Consent is not voluntary if the cop says he has a warrant, when he does not, or if he says they will get one if consent is refused.

Again, rather than remain willfully ignorant of the facts, why don't you research what the truth really is in this matter.

 

[2nd Amendment]

Well let's look at the reality of consent searches:

Too often it seems that people mistake the actual regulations and the way things should be for the way things are. In the meantime these same people generally seem to be completely unaware of just how fast things, having never been within the realm of their paperwork theory of "reality", are spiraling ever further into the abyss.

 

[DMF]

It's not paperwork theory, it's how things really work. I've asked for consent MANY times. Hell, I have asked for consent even though I had a warrant and didn't need it. I've done consent searches in the real world. I've had consent searches, consensual statements, etc, withstand the scrutiny of suppression hearings. It's not theory it's reality. If you get actual voluntary consent, then there is no fourth amendment violation. If there is any coercion then it invalidates the search, and exposes the cop to liabilty. Again, remember the burden of proof on the voluntariness of the consent is on the GOVERNMENT, ie the cop. If there is doubt about the voluntariness of the consent, at the minimum the evidence gets suppressed, and the cop may face criminal or civil penalties. That is reality, NOT theory.

 

[Vernal45]

If you are an LEO, and you are against this bill, because you dont see the need for it. Then you are part of the reason this bill is needed.

 

[gc70]

Good idea - all police searches should be involuntary. If the police have a reason to want to search someone/something, then get a warrant or use one of the rules for exigent circumstances.

The concept of truly voluntary searches just does not make sense. Who really wants to prolong a traffic stop to allow a search? Who really wants to step out of their vehicle into the heat/cold/rain and have a LEO fondle their person? Who really wants a LEO to poke around their vehicle and claw through their belongings? The answer to those questions is that nobody does.

People agree to 'voluntary' searches because they either don't know that they can refuse or they are too intimidated to refuse. And please don't cite the court cases defining the fine lines of intimidation; the average citizen doesn't have them handy to refer to during a traffic stop. The reality is that when a person with a gun and a badge wants you to do something, most people will agree.

Finally, I might as well punch a hole in the ol' LEO standby of "what is there to be afraid of if you haven't done anything wrong?" That dog don't hunt because it is based on the premise of "guilty until proven innocent" by agreeing to a search.

 

[DMF]

Vernal, gc70, don't want to, or can't, argue the facts so you default to arguing emotion.

People agree to 'voluntary' searches because they either don't know that they can refuse or they are too intimidated to refuse.

Did you miss the previous information about the burden of proving whether consent was voluntary is on the government, and therefore the whole, "too intimidated" argument is completely false.

Don't argue court cases? That's ridiculous. Those cases show what really happens to determine if consent was voluntary or not. It's reality, it's the truth, and you would rather ignore it based on irrational, uninformed, illogical emotional arguments.

 

[2nd Amendment]

It's not paperwork theory, it's how things really work.

I don't like the number of self-proclaimed LEO's we have here(and on so many other boards lately) and I know for a fact and first hand knowledge that some sizeable percentage are fakes and that lessens the credibility of every one who claims any LEO background. For that reason I leave a lot of things from my own life in a fog but I'll go so far as to say this: I've been on every side possible of the law over the years and no, that's not how it works. That's how it is supposed to work. That's how it sometimes works. But too often that is not how it actually does work.

And lately it's working correctly less and less, or perhaps we merely have so much more interaction between police and other citizens today than previously that while the percentages remain close the total actual number of incidents with bad results of one degree or another has increased drastically. Either way I'll second gc70: all police searches should be involuntary. If that makes your job more difficult, well, find another line of work.

 

[2nd Amendment]

Did you miss the previous information about the burden of proving whether consent was voluntary is on the government, and therefore the whole, "too intimidated" argument is completely false.

Did you miss the pointed out item that people have to KNOW and UNDERSTAND this? Most people do not know it nor do they understand it. My own mother did not know or understand it, even after years of involvement in legal and government life because of my dad and then me, even after we explained it to her repeatedly. Her logic was that when push comes to shove the word of the popo will be believed regardless of evidence to the contrary so why fight it?

People think like that, and thus they submit because they feel they have no choice and "voluntary" is just a pleasant fiction to make everyone feel less put upon.

You may not like that. You may believe people are stupid for believing it(and I'd agree) but, regardless, that is how they think and thus it does govern their actions then and afterwards.

 

[one-shot-one]

my only ???

were are ya'll finding these cops?
i've been driving for about 29 years and have been pulled over a few times.
i have never been searched nor has my car.
i was asked once to set in the back of the patrol car as we were on a busy freeway and a 30 year old guy can't be trusted not to walk into traffic!
i have been stopped by houston pd, harris and montgomery county sheriffs, hiway patrol, and assorted county and local police. some were nicer and more professional than others but none ever tried to search me or my car.

 

[gc70]

DMF, your arguments are technically flawless with respect to the law and court precedent and I do not disagree with that part of your logic.

However, you seem to ignore human nature. Intimidation does not need to arise at the end of a gun or even from verbal threats. Many people are intimidated by police simply because police are authority figures.

Do you really believe that most of the people who agree to a voluntary search really want to hang around and endure the inconvenience of a search? Or could they just be trying to curry favor with you so that you will let them go about their way? Can you envision that some of those people would really like to tell you to take a hike, but are afraid (for whatever reason) to say so?

On reflection, I can not come up with a single reason why a knowledgeable citizen would agree to a voluntary search. Which then begs the question: what percentage of citizens who are asked to agree to a voluntary search do agree to the search?

At any rate, all of the discussions I have seen about voluntary searches are unanimous in the conclusion that most of them result in finding nothing. If voluntary searches are not an efficient police tool, it seems that eliminating the attendant hassle to the citizenry would outweigh the limited law enforcement benefit that they provide.

 

[Vernal45]

I am wondering if DMF thinks these safeguards will protect a poor person, who can not afford an attorney to represent him to seek damages for a bad run in with an LEO.


Face it, LEO's dont want this, because it takes some of there powers away, and in their minds, that aint right.

 

[orangeninja]

" don't like the number of self-proclaimed LEO's we have here(and on so many other boards lately) and I know for a fact and first hand knowledge that some sizeable percentage are fakes and that lessens the credibility of every one who claims any LEO background."

What...don't you wanna be one? It's only a few keystrokes away

Had to take a stab.

Besides, usually you can spot a fake if you ask enough questions....even on the net.