A while back I was explaining to the kids over dinner about the basics of search and seizure. They’re getting older, and I feel it’s imperative to makes sure they feel comfortable denying consent should, god forbid, the situation presents itself. The youngest was mad because one of her friends had a backpack searched by a teacher. She didn’t think that was fair.
Her brother then asked, “don’t they need probable cause?” To which I said, “No.”
But I realized they, and most adults, don’t understand basic search and seizure law. And I continually see questions being asked by adults that go like this:
“I got pulled over after driving home from the bar. The cop told me to step out of the vehicle. He asked to search my car and asked if I had been drinking. I told him no (but only had a few) and told him he could search. He found an empty bottle under the seat and a baggie in the center console. I was charged with DUI and possession. He didn’t have a warrant. Can my case be thrown out?”
Let us ignore the implication of consent in the above scenario. Remeber: Never consent. As a licensed adult who likely regularly operates a vehicle, it’s time you learned something called the Automobile Exception. This exception allows police to search your vehicle WITHOUT a warrant. Why? Because your car goes zoom zoom and can be driven away with valuable evidence inside. Police don’t have time to call up a judge and obtain a warrant, before serving you with said warrant because you’ve likely already ditched the contraband. People smarter than us figured this out a long time ago and carved out an exception to warranted search and seizure. This makes sense, yes?
Now, that doesn’t mean police can go around searching every person they stop with impunity, like the Gestapo. But if a police officer pulls you over for a traffic stop, and somewhere along the way, realizes there’s a good possibility you’ve committed or are committing a crime, he’s searching your car. Without a warrant. And you’re going to be sent up river. One of the easiest ways for him to become suspicious is…plain view.
That means as he’s asking you for your license and asking if you know why he pulled you over, he’s also scanning the inside of your entire vehicle. He’s looking for bottles. He’s smelling for weed. He’s doing his job. And if you inadvertently left gun parts on the floorboard, don’t be surprised if he searches.
The key to defending against unreasonable search and seizure is identifying the point at which an officer oversteps his bounds from a reasonable suspicion that you’ve done something (think 15-percent chance), to a good probability that you’ve done something (think more than 50 percent). This leap can only happen under certain circumstances. It’s the unreasonable rush to that probable cause, which yielded drugs in your car, that creates a defense to the search. Cases aren’t automatically dismissed because you think the arresting officer overstepped his bounds. The argument has to be made, which is what we lawyers are for.
Just remember, you can avoid all of this warrantless exception nonsense by simply adhering to one principal: “driving clean.”