The 4th amendment protect a person from unreasonable searches and seizures. In order to raise the 4th amendment protection, there must governmental conduct and reasonable and justifiable expectation of privacy.
Governmental Conduct. The 4th amendment does NOT protect a person from searches conducted by a private citizen. If you neighbor decides to walk to your property and begin investigating your HOA violations, you cannot raise 4th amendment violation. If the private citizen conducts a search under the direction of the government, then the 4th amendment can be raised.
Reasonable and Justifiable Expectation of Privacy. The charged with a crime must have a subjective and objective expectation of privacy in the things searched. A person has perhaps the most expectation of privacy in his/her own home. Although you might have privacy inside the house, a police mayfly over your property in a plane. A person has a reduced expectation of privacy in the air space above his/her property because private and government planes routinely travel over the property. The trash bag taken to the curb can be searched because of reduced expectation of privacy. A K9 is allowed to sniff a passenger’s bag in the airport because of reduced expectation of privacy in the smells coming from the bag. Finally, a person is deemed to have a lower expectation of privacy in his/her vehicledue to the mobile nature of the vehicles. (Notice, that a person charged with a crime might not be the owner of the vehicle, but a passenger. This means that he/she might NOT have an expectation of privacy in the driver’s vehicle at all.)
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Vehicles. Even though there is a reduced expectation of privacy in your own vehicle, police must still follow certain procedure. Police must still have to have a warrant or an exception to a warrant requirement in order to search the vehicle.
Fixed Checkpoints. In Michigan Dept. of State Police v. Sitz (1990), the United States Supreme Court found properly conducted sobriety checkpoints to be constitutional. Police is allowed to stop every nth vehicle without probable cause or reasonable suspicion. Police must still follow the planning and administering standards in a sobriety checkpoint.
Routine Stops. Police may stop a vehicle based on a reasonable suspicion that a law is being violated. Reasonable suspicion is based on the totality of circumstances test. For example, police may stop a vehicle for going over an emergency white line on the pavement or failing to signal lane change. Police may also stop a vehicle if there is a mechanical problem with a vehicle (leaking oil, transmission fluid, smoke).
Stop and Frisk. The Terry frisk doctrine originated in the frisk of a person, but it has been used by police in vehicular stops as well. If police officer has a reasonable suspicion that a vehicle contains a firearm and the person pulled over is dangerous, then the officer may search the vehicle for guns. The search can extend to any part of the vehicle including passenger compartments and containers within the vehicle.
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Warrant. Police can always obtain a warrant to search a vehicle from a detached magistrate. The warrant will be issued if there isprobable cause that the items are connected to criminal activity and will be found in the place searched. The evidence sought must also be described with particularity.
There are a number of exception to a warrant requirement. Only the exception related to a vehicular search are described below.
Search Incident to a Lawful Arrest. If there is a lawful arrest based on probable cause, then police may contemporaneously search the arrestee’s vehicle. Police may search the vehicle only is the arrestee is unsecured and within a reaching distance of the vehicle OR police reasonably believes the vehicle contains theevidence of the crime of the arrest.
For example, a person is pulled over and later arrested for driving under the influence of the vehicle. When the officer first approached the vehicle, he/she noticed the driver hiding something under the seat. Can police search the vehicle? Most likely, YES. The officer might reasonably believe the vehicle contains the evidence of the crime of the arrest. The suspect is arrested for DUI, he might have been hiding an open alcohol container.
For Example, police pulls over a vehicle and arrests the driver for driving on suspended driver license. The police handcuffs the driver and puts him/her in the squad car. Can police search the vehicle? Most likely, NO. The first requirement is not met. He/she is secured and not within reaching distance of the car. Further, the crime is driving on suspended license, police cannot possibly believe that they can find evidence of the crime in the vehicle.
Automobile Exception. Due to inherent mobility of the vehicle, a person has reduced expectation of privacy in his/her own vehicle. If police has a probable cause (which could arise after the vehicle is stopped) that a vehicle contains contraband, they may search the whole vehicle and any containers therein. The search may even include the trunk of the vehicle.
Inventory Search. Before incarceration of the arrestee, police may search personal belongings and arrestee’s entire vehicle. For example, police may search the vehicle before impounding it.
This is most commonly used when booking a suspect to a holding facility (jail). Police searches the person completely to ensure the safety of the officers and to make sure no items are lost or stolen during the stay at the facility.
Plain View/Plain Smell. Police may search the vehicle if they see contraband in plain viewas long as they are legitimately on the premises and the incriminating character of the contraband is immediately apparent (probable cause). Police may rely on this doctrine when they smell marijuana outside the vehicle.
Consent. Police may make a warrantless search if the person whose items, persons, or premises are to be searched consents. The consent must still be voluntary and intelligent. This is perhaps the most used exception by police. It is very dangerous to consent to a search, especially when you never really know the true motive for the search.
Please remember that police does not have to find what they are looking for. If police search for drugs in the car and do not find any, then police simply conclude their investigation. If police search for drugs in the car following an valid exception, but find unregistered gun or other incriminating evidence, then the evidence will still be used against the suspect. This is true with any type of a search.
Know your rights and stay safe.
If you have been charged with a crime please call 619-357-6677.