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After 'slap' video, lawyer urges citizens to refuse searches

After 'slap' video, lawyer urges citizens to refuse searches

  • Updated
  • 19

The tip came from a man who told police he was riding in a car with a man who had crack cocaine.

Police stopped the vehicle, and believed they had a legal basis to search it and the people in it. That search led to the seizure of 17 grams of crack cocaine a Schenectady man had on him.

Four years later, the state’s highest court, the Court of Appeals threw out the conviction, finding police did not have probable cause for a search. The felony conviction against the man was dismissed.

A spotlight has been focused on the issue of when a police officer can legally search a vehicle because of the recent case that led charges and the resignation of a Saratoga County sheriff’s officer.

The officer, then-Saratoga County sheriff’s Sgt. Shawn Glans, was videotaped apparently smacking a young man who refused to give him access to his parked vehicle, where a rifle was visible.

To search a vehicle or a person, police need one of three things — consent of the person or owner of the vehicle, a search warrant or probable cause that a crime had been committed.

Warren County District Attorney Kate Hogan said a vehicle is considered an extension of a person, and if police suspect a person inside is a suspect in a crime or that a crime occurred in the vehicle, a search of the people inside and vehicle can be performed.

“You can detain a person long enough to confirm suspicions or dispel fears,” she said.

One of the more common reasons for probable cause to search is the smell of marijuana, Hogan said.

Probable cause is a gray area in the law and varies based on circumstances, and what one judge or court continues to be probable cause in one situation, another may not. The 1976 Court of Appeals case People v. Debour spells out the standards.

Saratoga Springs defense lawyer Kurt Mausert said he frequently hears from clients who say they were the victims of illegal motor vehicle searches.

“It especially happens to younger clients. Driving while young will get you pulled over all the time,” he said.

Police will search a vehicle without probable cause, consent or a warrant, arguing that even if the search is deemed illegal, they will have gotten illegal drugs or weapons off the street if something is found, Mausert said.

Mausert recommended people never consent to a vehicle search without a warrant.

“You don’t know what fell out of your friend’s pocket a week ago,” he said. “I had a client who was charged with criminal possession of a weapon when they found a knife he used to filet fish in his car.”

People should also surreptitiously audio or video record their interactions with police to protect themselves, he said. Mausert said he has had clients tell him police took their phones when realizing they are being recorded, but there are some phone applications that will send recordings off site for storage and recovery no matter what happens to the phone.

It is a stricter standard to search a home.

Police need either a search warrant, or an “emergency” reason to go into a home and perform a search, such as smelling a flammable liquid at a suspected methamphetamine lab, Hogan said.

The firestorm surrounding Glans stemmed from a case in which officers were investigating a “suspicious vehicle” complaint and found two young men walking to a car in the parking lot of the Wal-Mart store in Halfmoon. A rifle was visible in the back seat of the locked vehicle, and the owner refused to open it for Glans and two other officers. The owner was within his rights to do so under the circumstances.

Glans resigned his position with the Sheriff’s Office on Monday, hours before he was charged with official misconduct and harassment for the videotaped. He has worked part time for South Glens Falls Police Department as well.


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