Over the last several years both State and Federal Courts throughout the United States have seen an increase in the number of court decisions giving police greater and greater authority to stop and search vehicles suspected of transporting marijuana or other illegal drugs and narcotics. Even while states such as California and Arizona have been increasingly demonstrating a desire to relax the enforcement and punishment of those charged with marijuana related offenses, most other states have been granting police excess power to search a motor vehicle for little or no cause. Most troubling are new cases that are coming out in courts across America that are starting to grant police the right to sneak onto people's private property and attach a secret GPS device to their vehicle such that they can then track the movements of that vehicle unbeknownest to the owner. So what are the laws regarding stops and searches in most states and what can be done to protect citizens 4th Amendment rights to be free from illegal search and seizure?
Laws Governing Police Stops and Searches
Ever since the landmark Supreme Court case of Terry v. Ohio courts throughout the United States have been required to look at police stops from several different views.
First, before a person can be stopped in their vehicle, the police must have a reasonable suspicion of criminal activity. This is usually based upon either an observed violation of traffic laws, such as speeding or broken tail lights, or it can be based upon suspicious behavior by the driver of the car. Most of the time police use the traffic stop as a way to get a person pulled over because it is hard to disprove the officer's version of events - rarely to video cameras on police cars catch the actual traffic offense as it is happening. As a result, it is your word against the officer in Court as to whether you really were going too fast or didn't come to a complete stop at that stop sign. This has led to a great deal of abuse by police who can essentially find almost any reason to pull someone over who they want to investigate. Police are less likely to claim the vehicle and its driver were suspicious as this is easier for the trained defense lawyer to attack in the case. Police who believe a vehicle is suspicious are required to justify this suspicion by explaining how the driver was acting in a way that was suspicious that they could see or that the car was suspicious because of where it was located, the time of day, the manner it which it was operated, etc. A good defense attorney can almost always attack these bogus police reasons for a stop in these types of cases as the conduct of the driver is usually explainable by other non-suspicious means.
Once the Car is Stopped
Once stopped, police have a right to approach a car, ask for identification and insurance, ask the person to step out and run the persons information through their computers or dispatch. They also can ask questions about the occupants or the purpose of the trip but the driver and passenger are not required to answer these questions. This type of encounter is commonly referred to as a brief investigatory stop. Police are permitted to detain the vehicle for only the duration of time necessary to establish that the traffic infraction occurred, write a ticket or tickets and get information back from dispatch on the driver or occupants. Any further delay of the driver and car must be supported by probable cause to believe that the driver or occupants are committing some other crime than the one for which they were stopped. Most commonly, this is either the smell of alcohol or the smell of marijuana and/or drugs.
Right to Search
Unfortunately, a police camera cannot capture proof of alcohol or marijuana smells so when an officer makes a claim to such, there is no way to disprove it other than with the testimony of the driver or occupants. Once an officer believes that the car may contain illegal materials, he may conduct further questioning, ask for consent to search the vehicle and/or briefly detain the occupants of the car and request the assistance of a canine to conduct a drug dog search of the car. Drivers and occupants should exercise their rights to refuse such searches based upon the hunch of the police officer(s) and require them to either get a dog or search the car without consent or a search warrant. Most officers will not take the time to hold a driver and occupants to go get a search warrant so it is likely the police will enter the car based on their suspicion alone. Our law firm has taken a national lead on attacking these forms of searches by arguing that police are not drug dogs and do not possess the same sense of smell that a canine does; as such, a search based on their sense of smell should not be permitted - unless the officers have received training in detecting the odor of these drugs within closed containers or vehicles. In essence, we have been arguing that if the cops are going to be allowed to go around sniffing cars and sniffing out dope then they should be subject to the same testing as the drug dogs to prove they have those abilities to do so accurately.
If police enter a vehicle to search for evidence then they must have probable cause to do so and if the occupants of the car or the driver are detained for an excessive period of time while they do so, then they are considered to be under arrest. Furthermore, if the driver or passengers are actually handcuffed or place in the patrol vehicles, this too, may constitute an arrest. An arrest of a person on the roadside while a search is conducted is not legal and no arrest should occur in any case where contraband such as alcohol or drugs marijuana have been found. To do so is considered an illegal arrest and anything found by officers after that arrest would be inadmissible in Court as illegally obtained evidence. Furthermore, an unreasonable delay in bringing the drug dogs to the scene of the car stop may also constitute an arrest.
If Drugs or Alcohol are Found
If police find alcohol or marijuana drugs in the car, an arrest is likely to follow if it has not already. If the car contained more than just a driver, the police will try and get someone to admit to possession of what is found. These statements can be used against anyone charged in court if the person making them is not under arrest already. If the occupants of the car deny knowledge of the substance it is common for police to arrest everyone for the same marijuana, drugs, or alcohol and let the courts figure out whose stuff it really was. Under the law however, if police cannot prove who owned the contraband, the mere presence of the person near the alcohol or drugs is not alone sufficient to prove them guilty of possession. As a result, it is often the best policy for all involved to deny knowledge of the substance as it may be difficult for the prosecution to pin it on a single person. This does not hold true for the trunk of a vehicle or drugs/alcohol found inside a bag. The contents of a trunk are generally held under the law to belong to the operator of the vehicle. As for a bag, as there is usually clothing, identification or other items in the bag (such as if its a purse and theres only one woman in the car) that make it apparent whose it is, trying to deny possession in these cases may be difficult. However, every person suspected of a crime has a 5th Amendment privilege to remain silent and should exercise that privilege when asked to incriminate themselves. Let the police prove whose stuff they have found.
Car Searches After Arrest
If a person is stopped by police and arrested for an offense prior to a search of the car being conducted such as in the case of a DUI or an outstanding arrest warrant, the police will often conduct a police inventory search of the vehicle prior to impounding the car and towing it. This may also be an illegal search as state laws often do not permit such searches where another person is present who can safely drive the vehicle from the scene - such as a passenger. Also, in some states, the law now requires the police to give the driver a reasonable amount of time to call someone to come pick up the car before police may seize the vehicle and search it. Inventory searches are generally only supported under the law where no other reasonable means of getting the car into someone else of the owner's choosing is available. A driver should demand the car be released to a passenger or that they be allowed to call someone to come pick it up rather than allowing the police to take possession of it. Even if the driver does not believe anything illegal is in the car, you may save yourself unnecessary impound fees which can run into the hundreds of dollars by making this demand.
Illegal Search as a Defense
Illegal searches and seizures of persons driving an automobile are commonplace in our court system. Fortunately our laws are designed to ensure that police do not conduct illegal searches and arrests and that if they do so, they will cause such cases to be dismissed. Trained defense lawyers will file Motions to Suppress the illegally obtained evidence against persons whose Fourth Amendment rights have been violated. If a court agrees that police illegally stopped the vehicle the Defendant was driving, illegally detained the driver or passengers, and/or illegally searched the vehicle - these are violations of the Fourth (4th) Amendment and the Defendant's case will likely be dismissed. If police take a statement from someone they have arrested or detained without warning them about their Miranda rights in advance, this statement will likely be thrown out of court and the State will not be able to use it against them at trial. These constitutional law issues are the only protections a citizen has against overzealous police officers who unlawfully stop, arrest and search automobiles on the roads of our streets and highways.
If you have been charged with illegally possession or trafficking in drugs or marijuana or even if you have been charged with driving under the influence, you should know your rights and seek professional legal help from a trained criminal defense lawyer who has experience attacking the issues described in this article. A high powered criminal lawyer can often find the errors that police have made in stopping your vehicle and searching your possessions and convince the prosecutor or judge to dismiss your case. Also, a lawyer who specializes in drug or marijuana defense will have the highest degree of knowledge in this field as almost every case they handle will have these issues to address. Act fast though as waiting until the last minute to hire a criminal defense lawyer may cause you to lose your license or give up your right to raise these issues in your case.