Search and seizure law is a complicated and constantly evolving legal subject area which affects the lives of many citizens as they come into contact with law enforcement officers. Oftentimes these encounters with the police occur during routine traffic stops; i.e. where the officer stops a citizen for a minor traffic violation, which then escalates into a search and arrest of the citizen for a much more serious crime. 

The Legal Background

Whether a law enforcement officer has a lawful right to conduct a search and seizure of your person or vehicle is governed by the Fourth Amendment to our U.S. Constitution: 

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The United States Supreme Court has categorized the interpretation of the Fourth Amendment based in part upon a multitude of different factual scenarios, some of which constitute exceptions to the warrant requirement. The common denominator in each scenario is the Court’s attempt to balance the privacy rights of citizens against the duties of law enforcement officers to conduct investigations (searches) and to make lawful arrests (seizures) when a crime has been committed. 

Since the Fourth Amendment only prohibits unreasonable searches and seizures, the operative concept in any situation is whether or not the officer’s decision to conduct a search or seizure was reasonable under the circumstances. In a nutshell, if the court determines that the officer’s actions were not reasonable, any evidence collected or discovered as a result of the unlawful police action can be suppressed; i.e. it will not be admissible in a criminal trial as evidence against the accused. 

For example, generally the law requires the police to have a warrant based upon probable cause and signed by a judge in order to search a person’s house. In contrast, the police can search a car at the scene of a suspected crime when the officer has only a reasonable suspicion that a crime is being or has been committed.  No warrant is required. This latter case represents the automobile exception to the warrant requirement.  

The key differences between these two searches are that a vehicle is mobile, which renders obtaining a warrant to search the vehicle impracticable. In addition, our society places a higher expectation of privacy on a person’s home than on a person’s vehicle. Therefore, a warrantless search of a person’s vehicle is deemed reasonable under the circumstances, whereas a warrantless search of the person’s house is not. 

Three Tiers of Police/Citizen Encounters

Keep in mind that not every encounter a citizen may have with the police will necessarily invoke a Fourth Amendment application. The case law has divided citizen/police encounters into three basic categories, and only the last two involve the Fourth Amendment:

1. The Consensual Encounter:

This first level represents the most mundane form of interaction, and is the only time where the Fourth Amendment does not apply. This is the situation where an officer approaches a citizen (or a citizen approaches an officer), and the two of them have a consensual conversation, as opposed to a custodial interrogation. What is key to the consensual encounter is that the citizen has not been “seized,” i.e. has not been placed under arrest nor is being detained in any way. Here, the citizen is free to answer questions, or not, and can even walk away from the officer’s presence if the citizen chooses to do so. The officer does not need probable cause or reasonable suspicion to initiate a consensual encounter. However, in the event that the citizen does say something incriminating, or voluntarily allows the officer to search his/her person or vehicle, then the product of that interaction is not suppressible under a Fourth Amendment justification. 

2. The Terry Stop:

The second tier of encounter is known in legal terms as the Terry stop (referring to the seminal Supreme Court case of Terry v. Ohio, 1968). Pursuant to Terry v. Ohio, an officer can temporarily detain a citizen for a reasonable amount of time when the officer has a reasonable suspicion that the person has committed a crime, is committing a crime, or is about to commit a crime. In this situation the citizen is not under formal arrest, but he/she has been detained (and therefore seized), meaning the citizen is not free to leave until the officer gives the citizen permission to do so. The officer can proceed by initiating a limited investigation, as dictated by the circumstances. If, however, the officer detains a person without the requisite degree of suspicion, the person’s Fourth Amendment rights against unlawful search and seizure are violated.  If contraband or evidence of criminal activity is uncovered as a result of the unlawful detention, then the evidence recovered may be suppressed at trial.  

3. A Formal Arrest:

The final and most extreme level of encounter with law enforcement is the full-blown arrest, where the citizen is cuffed and taken to jail. In order for a police officer to make a lawful arrest, the officer must have probable cause to believe the citizen has committed a crime. As the phrase implies, probable cause is a higher level of certainty than mere reasonable suspicion, discussed above. Just as with a Terry stop, if the officer arrests a person without the requisite degree of probable cause, the person’s Fourth Amendment rights against unlawful search and seizure are violated. If contraband or evidence of criminal activity is uncovered as a result of the unlawful arrest, the evidence obtained as a result may be suppressed at trial. 

Application of these Legal Principles

Returning again to our opening traffic-stop scenario, we can conceive of many common fact patterns where these principles come into play, and may have a significant impact on the outcome of a criminal trial. 

Example One:

In the first-tier situation, an officer clocks a vehicle for speeding. The officer initiates a traffic stop, and detains the citizen temporarily as the officer writes the driver a speeding ticket and runs a routine background license check. During their conversation regarding the ticket, the officer asks the citizen for permission to search the vehicle. The driver declines the request, which he has a right to do.  Since the driver declines the search request, and since the officer has no probable cause or reasonable suspicion to conduct a search, the officer must then release the driver at this point in time. If the officer violates his duty and searches the vehicle without permission, nothing the officer discovers can be used against the driver at trial.

Now let’s change the facts of the above example to reflect the higher tiers of citizen/officer encounter. 

Example Two:

If in the first example the officer smells the odor of marijuana emitting from the inside of the vehicle as he approaches the door to talk to the driver about the speeding violation, the officer has thereby acquired a reasonable suspicion that the crime of Possession of Marijuana has been or is being committed in the vehicle. This reasonable suspicion gives the officer the right to detain the driver at least temporarily to conduct an investigation. So the officer searches the vehicle and finds a marijuana cigarette in the center console beside the driver. The officer now has probable cause to arrest the driver (a seizure) for the misdemeanor crime of Possession of Marijuana. 

Upon making the marijuana arrest, the officer now searches the driver’s person incident to an arrest. In the driver’s pocket the officer finds a baggie containing a small amount of white powdery substance that the officer knows from his training and experience to be cocaine. The officer can now arrest the driver for the additional felony crime of Possession of Controlled Substance. 

This second scenario represents an all too common sequence whereby an officer makes a solid case against the driver, and where the proper application of search and seizure law dictated the parameters of the officer’s right to conduct an investigation. This case will sustain a Fourth Amendment challenge since the entire process was consistent with the powers granted to law enforcement, relative to the test of reasonableness described above. All the evidence collected in this example would be admissible at trial against the driver. 

What should I do if I get pulled over and the officer wants to search?

Ultimately there’s not much you can do if an officer is determined to search you or your vehicle. Just rest assured that if you hire a good attorney, everything will get sorted out in court eventually. There are, however, several rules you can follow which will place you in the best possible position later in the event you are charged.

1. Stay cool, and be nice to the officer.

In all likelihood, the nicer you are, the better chance the officer will return your kindness back to you. You don’t have to consent to their requests, but you should avoid being belligerent, and/or quoting the law to the officer. After all, officers are human, too, and the last thing you want to do is to give the officer a psychological motivation to charge you with a crime. Remaining calm and polite will also look good to a jury if the officer’s body cam is played to the jury later in court. Finally, if the officer does attempt to search you or arrest you, do not resist. If you do, you will just escalate the situation to a point which may quickly get out of control. 

2. To the extent possible, remain silent.

Remember that anything you say or do may be used against you in court, especially if you volunteer incriminating information. Of course there are a few things you must say, but keep your conversation to a minimum. 

3. Decline the officer’s request to search your car. 

Even if you have nothing to hide, remember that the officer’s search may take quite some time and may trash your vehicle or belongings in the process. As a citizen you have the right to decline their request, and your decision to do so cannot be held against you. A good way to respond is to say “Officer, I know you’re just doing your job, but I need to get on my way so I’m going to decline your request.” 

4. Determine if you are free to go. 

If the officer has no reasonable suspicion to detain you, then you should be able to leave immediately following the issuance of a ticket in a traffic stop situation. There is no reason for you agree to stick around until they summons a drug dog, or until they find some other reason to detain you. But again, don’t just assume you can leave without their permission. You should ask, “Officer are you still detaining me, or am I free to leave?” That question will put the officer on the spot, and will be an important point in time for your defense should you find yourself in court. 

5. Ask for a lawyer! 

In the criminal justice system, these are magic words. Saying these words out loud are like throwing kryptonite at Superman.  If you already have a lawyer, tell the officer you would like to consult with him/her before continuing or making a statement. If you do not have a lawyer, tell the officer that you want one appointed before continuing further. Say these words clearly and repeatedly if necessary, and make sure that you say them loudly enough for the officer’s body cam to record what you say. 

How can I get more information about this topic?

If you are charged with a criminal offense you should contact a competent defense attorney skilled in the practice of criminal law immediately in order to begin work on your defense. The Bigham Law Firm has the attorneys with the experience, expertise, and resources to properly represent you in these difficult types of cases. 

If you would like more information about how to protect yourself in any criminal case, please call the Bigham Law Firm at (979) 743-4153 for a free consultation.