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Search and Seizure


Here is a basic rundown of the “Search and Seizure” provision of the Fourth Amendment
and what you should and should not do when stopped by police:

The Fourth Amendment applies to a search only if a person has a "legitimate expectation of privacy" in the place or thing searched. If not, the Fourth Amendment offers no protection because there are, by definition, no privacy issues. So the first question we have to ask is “Do we have a legitimate expectation of privacy when we are in our car with 50 beans under the seat?”

The courts would use a two-part test (fashioned by the U.S. Supreme Court) to determine whether,
at the time of the search, you had a legitimate expectation of privacy while sitting in your car:

· Did you subjectively (actually) expect some degree of privacy?
· Is your expectation objectively reasonable, that is, one that society is willing to recognize?

If the answer to both these questions is yes, then there is, as a matter of law, a "legitimate expectation of privacy" (and the courts will move to the issue of whether the search was reasonable or not.) But what will the courts say about your expectations of privacy when you are sitting in your car with all those beans?

When the police find a weapon on the front seat of a car, it is not considered a search under the Fourth Amendment because it is very unlikely that the person would think that the front seat of the car is a private place (a subjective expectation of privacy is unlikely), and even if the person did, society is not willing to extend the protections of privacy to that particular location (no objective expectation of privacy). Therefore, if your drugs are in plain view, the Fourth Amendment will not protect you and the cop will have the ability to arrest you (and then search the rest of the car for anything else you may have).

The law gets a little hazy when we start talking about drugs that are not in plain view. In United States v. Ross, back in 1982, the Supreme Court said that "[p]olice officers who have legitimately stopped an automobile and who have probable cause to believe that contraband is concealed somewhere within it may conduct a warrantless search of the vehicle that is as thorough as a magistrate could authorize by warrant."

This is troublesome because it trumps the reasonable expectation of privacy. What the Court is saying is that even if you have a reasonable expectation of privacy in you car, a police officer can override your privacy concerns and conduct a search of your car if the particular circumstances justify the search without a warrant.

The following are examples of what circumstances justify a search
(and anything found in your car, on you, or on your passengers will be admitted in court):

· Consent searches. If the police ask your permission to search your car, and you agree, the search is considered consensual, and they don't need a warrant. If the police ask to search your car, politely say no. Often times, when you say no, police will threaten to detain you until they can get a warrant. Don’t give in – if you give consent, the evidence will be admitted in court. If you make the police get a warrant, there is a much greater possibility that the evidence will be thrown out (based on probable cause).

· Searches that accompany an arrest. When a person is placed under arrest, the police may search the person and the immediate surroundings for weapons that might be used to harm the officer. If the person is taken to jail, the police may search to make sure that weapons or contraband are not brought into the jail. (This is called an inventory search.) Inventory searches also frequently involve a search of the arrested person's car (if it is being held by the police) and personal effects on the theory that the police need a precise record of the person's property to avoid claims of theft. So, don’t drive drunk and don’t drive 100mph. If you get arrested, the police will search you and, when they impound your car, they will search it so you don’t accuse them of stealing the laptop from the backseat (tricky, aren’t they). Guess what, they will find your E and you will get another charge or two tacked on (depending on how much you have).

· Searches necessary to prevent the imminent destruction of evidence. A police officer does not need to obtain a warrant if she has observed illegal items (such as weapons or contraband) and believes that the items will disappear unless the officer takes prompt action. This exception arises most frequently when the police spot contraband or weapons in a car. Because cars are moved so frequently, the officer is justified in searching the entire vehicle, including the trunk, without obtaining a warrant. So, this usually takes place when you are not at your car and the cop walks by and spots what looks like drugs (or a gun) on the seat. The officer is entitled to open your car, do a complete search, and arrest you when you come back to your car, rolling off your ass.

What this all boils down to is that a police officer generally cannot just search your car unless you give them an excuse too. This includes consent, leaving suspicious items in plain sight, or doing something stupid like driving drunk. If you get pulled over, be polite and be on your way.

(Some examples and statements of law taken from www.nolo.com)