Tuesday, January 30, 2018

Bill bans smell of booze or weed as probable cause

Check out House Bill #1011 by Representative Joel Bomgar below:


AN ACT TO CLARIFY THAT A SINGLE INSTANCE OF A MOTORIST'S TIRE TOUCHING A LINE OR REFLECTOR OR A SINGLE INSTANCE OF WEAVING SLIGHTLY WITHIN THE LINES MAY NOT CONSTITUTE REASONABLE GROUNDS OR PROBABLE CAUSE FOR A TRAFFIC STOP; TO CLARIFY THAT ANY SMELL OR ODOR SHALL NOT CONSTITUTE REASONABLE GROUNDS OR PROBABLE CAUSE FOR THE SEARCH OF A VEHICLE DURING A TRAFFIC STOP; AND FOR RELATED PURPOSES.
     BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
     SECTION 1.  (1)  In traffic stops conducted by a law enforcement officer of this state or a political subdivision thereof, a single instance of a motorist's tire touching a line or reflector or a single instance of weaving slightly within the lines shall not constitute reasonable grounds or probable cause for a traffic stop.
     (2)  In traffic stops conducted by a law enforcement officer of this state or a political subdivision thereof, any smell or odor shall not constitute reasonable grounds or probable cause for a search of the vehicle.
     SECTION 2.  This act shall take effect and be in force from and after July 1, 2018.

Kingfish note: It sufficeth to say that law enforcement is in a tizzy over this bill.  Does this mean that a police officer can't use the fact that a driver reeks of alcohol as probably cause? The bill was referred to House Judiciary Committee "B".  The Chairman is Representative Andy Gipson.

45 comments:

Anonymous said...

In the words of Cheech and Chong, "I'm gonna drive real slow so no one will suspect anything".

Anonymous said...

Dilly dilly!

Anonymous said...

I used to not like Joel Bomgar, but now he's starting to earn my support. As a real conservative libertarian, I feel as though police abuse their powers far too much. I feel as though Bomgar is the only legislator who doesn't kiss LEO's a**, and for that I applaud him.

Anonymous said...

Agreed 9:32!

Anonymous said...

Agreed 9:32!

Anonymous said...

This is foolish and a waste of time. I doubt many judges would justify probable cause for brushing the fog line; in fact, I've heard one flatly reject that excuse for pulling a car over. The smell issue is patently absurd.

Anonymous said...

I am really ambivalent on this issue. On one hand law enforcement should not be given free hand to stop motorists on the flimsiest of pretexts. On the other hand, I, as a recovering doper (32 years sober), have no problem with random sobriety checks or traffic checkpoints, as I have nothing to fear. Given the level of criminal activity in the Jackson area, I have a problem restricting law enforcement any more than necessary.

Perhaps legislation clarifying the valid reasons FOR a traffic stop would be in order.

Anonymous said...

Law enforcement abuse this discretion all the time, pulling people over for no reason and claiming they were "driving erratically" when in reality they just felt like stopping that car with a particular license plate. They also often claim they smell marijuana as an excuse to search the car, even if that's not the case. You hear the stories of the big drug busts but I can tell you there are plenty of stories of innocent people who end up sitting on the side of the road with their belongings scattered in the median as the cop car drives away feeling like they were just harassed. I don't know if this bill is the way to solve these issues, but I'm glad this representative is starting the conversation.

Anonymous said...

So now LEO will simply say the motorist crossed over the line on several occasions

Anonymous said...

10:00 am is right. Something should be done to address abuse, but I don't know that this is the right way to do it.

Anonymous said...

I've always thought that Bomgar was insane. But I will say he's got cojones, for sure. I guess we need all politicians to be insulated from the need to raise money. As to the merits of this, 1) No way in hell it gets out of Talibaptist Gipson's committee; and 2) It wouldn't work in practice even if it passed and Phil signed it. The abuse he's trying to stop is real. Cop pulls someone - usually black or brown someone or someone from out of state - on the pretense that he touched a line (which is always a matter of his word versus mine). They then say they smell the odor of marijuana, which causes them to ask to search the car. Most people don't understand that they have the right to say no to a search, and let them in. Boom. Over. If the driver doesn't give permission, the officer can then "seize" the person if he has probable cause to believe that a crime was committed and the person seized committed the crime. In many cases, the PC officers use is that they smelled MJ, did a search, and then found a bunch of meth. That is obviously pretextual, but passing a statute banning cops from ever using the smell of MJ or alcohol is foolish and dangerous.

Anonymous said...

This is a waste of a bill. Obey traffic laws, dont drink and drive, dont have weed. Not real complicated. Oh and research the "plain view doctrine"

Anonymous said...

It’s not illegal to reek of booze while driving in Mississippi. In fact, it isn’t illegal to drink and drive in Mississippi. It’s only illegal to be impaired by alcohol related drugs while driving.

This is cutting right at the heart of pretextual stops and searches. Bravo, good sir! Bravo!

Anonymous said...

What the hell is Florence supposed to of? If they are not allowed to stop people for "swerving" they will lose one of their biggest money makers. Hopefully the "swerving" stops will go the way of the radar guns to small town speed traps.

Anonymous said...

Anyone who has had to deal with the Flowood PD knows that MS law enforcement agencies use copies of the Bill of Rights as toilet paper. It hardly matters what the rules say. They’re gonna do what they’re gonna do. The rules just let them know the lies they need to tell to get away with it. I used to loathe that cowboy attitude when I was a kid, and I still kinda do. But as a Rankin county parent and home owner I have to say that I also see some merit to it. “People don’t think it be like it is, but it do.”

Anonymous said...

I'm sure Pelahatchie's forfeiture money train is opposed to this as well.

Anonymous said...

The swerving is the reasonable suspicion justifying the stop. But it is the smell of pot that allows them to search through all your belongings AND seize your $ if ANY dope is found. Smell of alcohol absolutely should result in breath test for driver. But no more probable cause for smell of pot .

Anonymous said...

This makes sense. Due to awful roads, driving in and out of the lines is normal. "Smell" is non-falsifiable as a pretext so is abused by LE. (My background is law enforcement/intelligence). Bomgar is a gift to MS and should be supported even if you dont like. Not a crony, made his own financial success through intellect and hard work. Personally lives his life according to Christian conservative values. But can draw a distinction between his own values and imposing them coercively on others. Politically he is brave, arguing for what's unpopular but right despite his own differences. He is a classical liberal--now considered libertarian-- which enshrines individual freedom and liberties so long as you don't harm others, in the best tradition of our founding fathers and birth of this republic. He is a great counterpart to the disgusting statism of crony capitalist GOP and racialist welfare Dems. Both leaderships are only interested in lining pockets through coercion of state, which leaves the majority worse off, and our ranking a perennial 50.

Anonymous said...

If Bomgar can drop a few hundred more bills each session he'd can rightfully be the Erik Fleming of his party.

Anonymous said...

I have come to admire his courage in speaking out against the ever encroaching nanny/police state.

Anonymous said...

If a police officers pulls me over for some infraction he is, in my opinion, simply doing what he is paid to do. If, after having stopped me, he becomes suspicious (for any reason) that I might be intoxicated or high, then he is STILL only doing his job when he decides to test my sobriety and/or search my vehicle. And, since I do not drink and drive or partake of any kind of illegal drugs, he will not find anything, therefore I have no reason to fear or object to him DOING HIS JOB, do I?? The only people who have any reason whatsoever to complain about this so-called "abuse" are those who are GUILTY of impaired driving and being in possession of illegal drugs....so why do we care what those people think of the process???? Why are we bending to THEIR demands???

Anonymous said...

Andy Gipson brought this bill up for discussion yesterday in his committee but emphasized several times that he was NOT voting it out, he just wanted to have a discussion around the bill and get feedback. i.e., let law ENFORCEMENT tell him how to be a lawMAKER. Pathetic.

Anonymous said...

If you are completely sober 12:03 and have done nothing wrong then you are a FOOL for consenting to allow the police search your vehicle.

Anonymous said...

For those that don't watch A&E's LivePD on Friday & Saturday nights to me it seems to be more about other stuff than just drugs. The amount of times they find distribution levels, selling levels, guns, paraphernalia, scales along felons with guns in my mind offsets the finer point. So many times they drive away with just a ticket.

I would include the amount of times that a driver or passenger has warrants is amazing. I agree no one should be stopped for no reason or something that poses no threat to the driving public, but laws like tags, burned out lights need to be enforced or laws become worthless. Routine tag checks show if driver is suspended, no insurance, on the right car, date tabs on correct tags. So many thing pit officers at the driver window and if he smells its to bad for the driver. No one wants drunk drives killing or maiming our familys so no quarter should be given there.

Anonymous said...

The 4th Amend. protects individuals from unreasonable searches and seizures....If an officer can smell booze or weed, that is not a reasonable expectation of privacy, just as the smell of a rotting corpse from the trunk of a car.

Move over, Donald Trump, this is the kind of thinking we need in Washington!

Anonymous said...

No person should be stopped just because some Podunk town, that cannot even use a radar gun, can make a few dollars to pay for all of the undercover cops they have on the payroll.
I can remember looking for a cop in Florence to let them know about a large chunk of granite laying in the middle of hwy 49. Several cars had been damaged and were setting along the road. Finally found several cops visiting with the girls who worked in the convenience store. They said they would probably go take a look after they had finished their break.
Writing those tickets for swerving can be very tiresome.

Anonymous said...

1:11 you know they edit those shows, right? Otherwise, wow, what amazing police work! Always 100% correct.

Police use the nebulous, undisprovable "careless driving" as a pretext all the time. I don't think a statute can define probable cause, pretty sure the Judicial branch might have a problem with that, but it is a very good idea by Bomgar. It's always amazing to me how often police dash cams aren't operable the day the stop for careless driving was used as probable cause. Or if they were operable, the careless driving happened 35 seconds before the blue lights came on, as the dash cam backs up 30 seconds prior to the lights coming on.

Anonymous said...

Not 100% correct often stops turn out to be nothing and drivers released, yes not always but often.

Anonymous said...

12:03 is either a doofus or a beneficiary of the status quo. The bad ones abuse, misuse, and generally just make things up to pull people over. It’s not as bad as it once was, but after you’ve dealt with it in the past, every time you leave the house becomes a strategy of not getting pulled over, and the likelyhood of it actually happening. Many years ago, on the way to the Neshoba County fair, my grandfather went through a road block. He opined that “they” were ruining everything. His brother was used to be law enforcement in that general area. So, it’s not that those of us who oppose unnecessary government intrusions (for profit) are “anti-cop.”

We oppose being harassed while trying to enjoy life and trying to engage in freedom of mobility. Having to prove that you’re not a criminal when you want to go somewhere is just not fun. We have a constitution, with a subsection referred to as “the bill of rights.” Much to my dismay, it seems that most southern conservatives oppose the very idea of rights.

Government doesn’t exist to authorize or render void unalienable ”God given” rights at its sole discretion on the enforcement level or any other level for that matter. Government exists to protect those rights.

Anonymous said...

I love Flowood's finest. I will never buy another car in Flowood after I was pulled over while test driving a car less than a half-mile from the lot. Cop was a complete a**hole during the entire stop, even though the salesman sitting next to me let the cop know the situation. I didn't mind the license and insurance check, but the "I rule above all attitude" sucked serious donkey.

Anonymous said...

This is likely a response to what the Mississippi Supreme Court did on Oct. 19, 2017. For those who are not aware, check out the case of Kendall MARTIN a/k/a Kendall Deval Martin v. State of Mississippi, NO. 2015–KA–00772–SCT.

One of the highlights of the opinion comes from the dissent, by Kitchens:

"¶ 45. I vehemently disagree with the majority and the Mississippi Court of Appeals in Williams, Dominick, and Tran that a single instance of crossing or bumping the fog line, without more, provides probable cause for a law enforcement officer to initiate a careless driving traffic stop. No other court in the United States has held that such minimal conduct as Officer Johns observed justifies a stop for careless driving. Yet the Mississippi Court of Appeals—and now the Mississippi Supreme Court—have whittled down the protections of the Fourth Amendment to the United States Constitution and Article 3, Section 23, of the Mississippi Constitution such that any vehicular movement in the direction of or over a fog line that is perceived by a law enforcement officer, without more, constitutes careless driving and provides an objective basis on which a traffic stop may be initiated. That is not enough, and the standard articulated by the Court of Appeals and adopted by this Court runs afoul of the constitutional protections we are bound by our judicial oaths to uphold and defend."

A. Carthagenian in Blue said...

YEEEEEEE huh?

Step Out Ma'am And Lemme Shoot That Squirrel.. said...

The Hick cops in this state, at all levels, have long relied on the freedom to claim, "I smelt somethin' your honor" or "He were all over the road, yassuh, he shore was, left to right, so I put the lights on him, snort".

With giggles and applause from the other cops in the second row, grinning and poking each other with their elbows.

'You swar to that under oath, officer?' "Yassuh, I sho do your honer, I done smelt mary-wonner before and that's what it wuz, no doubt in my mind. Sho Wuz.'

And..."I no weavin' when I see it yore honner. And She was sho weavin', yep."

Charlene Darling said...

Representative Joel Bomgar DOESN'T have dog in this race. Let someone who's love one was killed by a drunk/high driver give input into this bill.

Anonymous said...

Best case scenario, libertarians are well-meaning history nerds that think their way is the best. Worst case, they're just as much control freaks with a holier than thou mentality.....I don't see how you can deem the ability to act upon a strong odor of alcohol or weed as probable cause. If you smell like either, I don't pity you. If you can't beat a DUI stop, I don't pity you. That is not tyranny! Get your cheap drunk a$$ in an Uber or a Veteran's Taxi or just stay home if you can't afford one.

Anonymous said...

Recent MS Court of Appeals case affirmed probably cause when motorist bumped fog line ONCE.

Want your wife pulled over in Jackson when she bumped the fog line?

The Representative is right on!

Anonymous said...

What's all this yack about Bumping a Fog Line Once? All the officer has to say is 'he bumped it at least three times'. And what the hell is a 'fog line'?

Most local judges and all federal magistrates are in cahoots with officers anyway and will never toss a charge based on lack of probable cause.

Anonymous said...

Bomgar's overall intentions are good, and he deserves credit for taking a stand that's unpopular within the MSGOP. But this would be impossible to enforce.

If the dash cam is not on (and it usually won't be prior to the blue lights activating) all the cop has to say is, "He went over the line three times." Same with the "smell" clause -- probable cause determinations have to consider all the circumstances, so the officer just says, "He smelled like weed, plus he couldn't maintain eye contact and was slurring his words."

The way you solve police abuse is to elect judges who won't tolerate it, who can look at each case with a skeptical eye and spot BS when they see it.

Short of that, you're just requiring bad cops to tell slightly more elaborate lies.

Anonymous said...

I complained about the swerving stop by a cop to a judge. I was told. "Who do you expect me to believe, a law enforcement officer or a person who was caught breaking the law?"

Anonymous said...

Dead.

http://billstatus.ls.state.ms.us/2018/pdf/history/HB/HB1011.xml

Anonymous said...

Thank goodness, this was a completely idiotic bill from the start! It totally shows his lack of awareness and exposure to simple application of the law.

Anonymous said...

Thanks for weighing in at 3:02, officer. Glad the bill got out there to start this discussion. There is much abuse in this area.

Anonymous said...

3:02, quite the contrary. I'd be willing to wager he is more educated and aware about police abuse than anyone in our legislature.

Career politicians are followers. Joel is not a career politician. He is a leader.

Thankfully, there are still some conservatives who believe in limited government. The bill's wording is VERY intentional, it mentions nothing regarding alcohol or MJ.

Anonymous said...

4:14 PM, don't drink the wine if you can't do the time.

Don't roll a blunt if you're sitting in the front.

Don't drink any beer if you're trying to steer.

Don't drive with a joint if you get my point.

Anonymous said...

Actually if you will take a break from all the LEO bashing and do some research you will find that the U.S. Supreme Court in a 7-0 decision (which is unusual) ruled that "Plain Smell" is as important as "Plain Sight", or "Plain Feel". I am not sure so I will have to do the research on how the state can go against a Supreme Court ruling.

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