| The Search
Q. Suppose the officer wants to search my car?
A. Ask why the officer wants to conduct a search. If you have
absolutely nothing to hide,
expediency might dictate that you let the search proceed. If you don't
want the search to
proceed, you do not have to consent. Usually, the officer is not permitted
to conduct the
search unless you consent, the officer has probable cause (see below),
or the officer
reasonably believes that he must search the auto for his or her own protection.
Ask
courteously whether the officer has a search warrant of if you are under
arrest. If the
officer replies that you are under arrest, ask for an explanation.
Q. What if the officer insists on searching my car?
A. Don't interfere. You can always challenge the legitimacy of
the search later in court.
Q. Can the police legitimately search my vehicle without a warrant?
A. That depends on the circumstances. The police would not usually
have the right to
search your automobile when you are stopped only for a minor traffic offense
such as
speeding, but if the violation requires that you be taken into custody
(for example, a
"Driving Under the Influence" [DUI] arrest or driving with a
suspended license), the
search would generally be permitted. If the officer has arrested you,
the officer does not
need a warrant to pat down your body in searching for weapons.
In general, when an arrest is not involved, the police have more latitude
to search a
vehicle than to search a home. The U.S. Supreme Court recognizes an automobile
exception to the Fourth Amendment's protection against warrantless searches.
The Court
has held that a person expects less privacy in an automobile than at home.
(No one ever
said "A man's Chevy is his castle.") The rationale for permitting
warrantless searches of
cars is that the mobility of automobiles would allow drivers to escape
with incriminating
evidence in the time it would take police to secure a search warrant.
For a warrantless
search to be valid, however, the officer must have probable cause. (See
the "Criminal
Justice” section for more details on this topic.)
Q. What is probable cause?
A. Probable cause, in this context, is a reasonable basis for
the officer to believe that the
vehicle contains incriminating evidence, so that the officer is legally
justified in searching
it.
Q. What part of the vehicle may the police search if they have
probable cause?
A. Generally, the police officer may search the immediate area
at the driver's command,
that is, under and around the front seat. The law is always changing.
Sometimes state
constitutions offer greater protection against searches than the U.S.
Constitution.
Therefore, if you have questions about a search the police have made of
your vehicle, it is
best to consult a lawyer in your state.
Q. May the officer search in my glove compartment?
A. Yes, the Supreme Court has held that such a warrantless search
is permissible. The
reason is that the glove compartment is within the arrested driver's reach.
Q. May the officer search a closed container inside my car?
A. Police are permitted to search containers or packages found
during a legitimate
warrantless search of a vehicle. The container must be one that might
reasonably contain
evidence of a crime for which the officer had probable cause to search
the vehicle in the
first place. In 1982, the Supreme Court ruled that the police do not need
a warrant to
search closed containers found in the passenger compartment of an automobile
whose
occupant is under arrest.
Q. May the police search my car without a warrant after they
have impounded it?
A. The police do not need a warrant to undertake a routine inventory
of an impounded
vehicle. The reason is that such an inventory protects the driver's possessions
against theft,
and also protects the police against claims of lost or stolen property.
Such an inventory
also protects the holding facility from dangerous materials that may be
in the impounded
vehicle, and it may aid in the identification of the arrested person.
Q. Suppose the officer sees a packet of marijuana on the back
seat?
A. When the police can see evidence readily from a place in which
they have a right to be,
the law does not consider it a search. Rather, it is a plain view seizure.
As long as the
officer has a legitimate reason to be standing by the car and easily sees
what the officer
has probable cause to believe is evidence of a crime, the officer can
make the seizure.
Then the officer probably could conduct a warrantless search of the rest
of the passenger
compartment of the vehicle and possibly the trunk (if probable cause exists
to believe the
trunk may contain evidence).
Q. Can the police pull me over in a roadblock and demand to check
my license and
registration?
A. The U.S. Supreme Court has said that such roadblocks do not
constitute an
unreasonable search as long as police stop all the cars passing through
the roadblock or
follow some neutral policy, such as stopping every fourth car. The police
can't single out
your car unless they have an articulable suspicion that you don't have
your driver's license,
your vehicle is unregistered, or that you or your car are otherwise seizable
for violating the
law.
Q. Is it legal to design a roadblock to catch drunk drivers?
A. Yes, provided the selection of vehicles to be stopped is not
arbitrary and it minimizes
the inconvenience to drivers. Courts have upheld such roadblocks as constitutional.
States'
legislatures disagree, however, about whether the prosecution needs to
show that a
roadblock is the least intrusive way to enforce drunk driving laws. Also,
some states
require that the ranking police officer who supervised a roadblock testify
at the offender's
trial.
Q.I got stuck in a speed trap. What can I do about it?
A. If the speed limit was clearly marked and you were exceeding
it grit your teeth and pay
the fine. If you think you've been unfairly prosecuted, you might report
the trap to your
auto club or state authorities to spare other drivers the same expense.
Q. I was stopped for speeding by a radar gun. Do those things
work?
A. Courts today regularly take judicial notice of the ability
of radar to measure accurately
vehicular speeds. That doesn't mean that you can't try to prove that the
particular radar gun
in your case was poorly maintained or that its operator misread the results
or was
inadequately trained to use the device, but it is an uphill fight.
Q .Aren't "fuzzbuster" devices the best way to avoid
speed traps and radar guns?
A. Depends where you drive. Some states have declared them illegal,
subjecting drivers
who use them to fines.
|
