Asked in Criminal Law, Traffic Tickets and Civil Rights for Idaho

Q: If I got pulled over in idaho for speeding but never got ticket for speeding but got poss of paraphernalia is that legal

1 Lawyer Answer
Kevin M Rogers
Kevin M Rogers
  • Criminal Law Lawyer
  • Boise, ID
  • Licensed in Idaho

A: This is a good time to learn about Idaho and the 4th Amendment to the US Constitution. A police officer has been endowed with a limited amount of discretion. He is not required to ticket someone for the "reasonable suspicion" reason that he pulled him over for, but he should if he wants to avoid the criticism, which is valid, and that is that his "stop" wasn't really based on the "reasonable suspicion" he had that a crime had been or was being committed, and that you were the one that probably did it, but that it was a "pretextual stop." A pretextual stop violates the Idaho and Federal, Due Process Clause of the 4th Amendment. A police officer must only stop your car if he sees a traffic infraction, that he could pull you over for. If he doesn't see this, he can't use his "gut instincts" to pull the car over in hopes his gut instincts are reliable because the Idaho Supreme Court said that our rights are not determined or protected by an officer's "gut instincts." What will tell you if he really believed what he was pulling you over for, is if he gives you a citation for it . . . but he is not legally required to. Because once your car is pulled over, he can see through your open window or untinted window, any paraphernalia you might have, and he can ask you if you have any paraphernalia in the car with you. Likewise, Idaho case law is clear that his original "suspicion" can open like a rose in Springtime, as you roll down your window. If he smells MJ his "suspicion" becomes "probable cause" to believe that a crime had been committed and that YOU were the one who committed it. If he believes he has "probable cause" to believe, then he doen't have to get a warrant before searching the car, because if he said, "you know I think I can smell MJ, would you stay right here while I go get a warrant from a judge to search your car?" most likely you wouldn't be there by the time he got back. So, this is an "exception" to the usual requirement that a cop have a Warrant to Search, before he searches you car. Good luck in your investigation. Tell everyone you know and love, that if they EVER come in contact with police, they should NEVER say a word to them! Do not talk and NEVER take a test!

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