Bypass PC to search w/ arrest for traffic violation

Discussion in 'Off-topic' started by Ned, Oct 25, 2010.

  1. Ned

    Ned New Member

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    Not to spread a bad idea but it occurred to me after reading a case and OCGA 17-4-3, which says that issuing a citation for a traffic offense is optional and not a restriction on police, that an LEO that really wanted to search someone's car could just arrest them for whatever traffic violation they pulled them over for and search their car incident to that arrest. I don't think an officer can issue the citation and then decide to arrest, so this assumes that the officer determines that they want to search fairly early on.

    Seems like this tactic would be in officer training right next to how to get a consent search.

    see:

    State v. Lowe, 263 Ga. App. 1, 587 S.E.2d 169 (2003) - Although O.C.G.A. § 17-4-23(a) gives a police officer the option of issuing a citation, it does not restrict the power given to police in O.C.G.A. § 17-4-20 to make custodial arrests for crimes committed in their presence. Consequently, after a driver is arrested for a traffic violation, a police officer can lawfully search the interior of the driver's car.

    One district court seemed to try and limit this way back when by interpreting it as permitting arrest by citation in all but a few circumstances.

    Young v. City of Atlanta, 631 F. Supp. 1498 (N.D. Ga. 1986) - A Georgia traffic offender may only be physically arrested if, following citation for the offense, the offender fails to appear in court under O.C.G.A. § 17-4-23(b), if the arresting officer has personal knowledge that the offender was intoxicated to the extent that the offender was incapable of driving safely, or if one of the other factors of O.C.G.A. § 17-4-20 is present.

    But that is the only case that went that way. As a later court explained

     
  2. SheriffOconee

    SheriffOconee New Member

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  3. Ned

    Ned New Member

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    Good point SO. I guess State v Lowe is no longer valid though Lexis shows it is.
    What about inventory search which Gant did not impact? (is impounding the car feasible for a minor traffic infraction)
     
  4. SheriffOconee

    SheriffOconee New Member

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    Inventory is SOP everywhere I imagine, or rather,it should be.
    If we take possession of the vehicle, then we inventory it.
     
  5. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    The legislature should change the law relating to powers of arrest. I think the power to arrest and incarcerate and post a bond for traffic and most misdemeanors should be taken away. Issue a citation and tell them you will see them in court.

    There is really no reason why a nonviolent misdemeanor person should spend a weekend in Oconee County's guest accomodations awaiting somebody in the family to post a bond.

    Most other states provide by law that only certain crimes are arrestable offenses.

    I also think that every last stinking technical violation of every law that politicians could come up with can hardly justify a penalty of a year in jail and a $1,000 fine. There ought to be grades of misdemeanors. Some may justify only a small fine. Others, incarceration, but not for a year. Only the worst ones should justify a year and carry a sentence of a year.
     
  6. smn

    smn Active Member

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    If the car is impounded it will get inventoried. Discovery of contraband in the car is inevitable. Suppression of any contraband depends on the validness of the original stop. Gant changes things a little depending on where you are in respect to the car and the arrestable offense.