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Illegal Search of a Vehicle or Person

Posted on November 9, 2023 in

Suppressing Evidence: Illegal Search of a Vehicle or Person

In a previous blog posting entitled Suppressing Evidence from the Illegal Search of a Home, I discussed how the Fourth Amendment to the U.S. Constitution protects homes against unreasonable searches and seizures by requiring the government to obtain a search warrant before conducting the search. Because special rules have developed concerning searches of persons and motor vehicles, these searches are given special treatment in this article. Just as with the illegal search of a home, the illegal search of a vehicle or person can result in suppression of the seized evidence.

Stop and Frisk of a Person

A law enforcement officer who makes a legal arrest is entitled to search the person arrested. However, law enforcement officers sometimes seek to stop people walking in public and question them, without making an arrest. For example, police officers may be investigating a reported crime or may simply observe circumstances they view as suspicious and thus have a desire to talk with a person. Under appropriate circumstances, the law permits peace officers to “stop” a person. These stops are sometimes referred to as “Terry” stops, named after Terry v. Ohio, a famous United States Supreme Court case. Fourth Amendment protections still exist, but probable cause and a warrant are not required.

What Is a “Stop,” and When Is it Permitted?

A “stop” is a brief investigative detention of a person that does not rise to the level of an arrest. A stop is permitted when a law enforcement officer has a reasonable suspicion of criminal activity. “Reasonable suspicion” is an objective standard that is less than probable cause.

It is important to note that not every interaction between a law enforcement officer and a person represents a “stop.” Nothing prevents a law enforcement officer from approaching a person and requesting information. If the person has not been stopped or arrested, he may simply ignore the officer and walk away.

On the other hand, a lengthy detention, even if not called an arrest by the police, may ultimately be determined by the courts to be an arrest, which triggers additional protections for an accused. It is the level of detention that determines whether a stop or arrest has occurred.

What Is a Frisk, and When Is It Permitted?

Depending on the circumstances surrounding a stop, a frisk may also be permitted. A “frisk” is a pat-down of a person to check for weapons. Just because a stop occurs does not mean that a frisk is automatically permitted. A frisk is appropriate only if the law enforcement officer reasonably suspects that the person stopped is armed and dangerous. Moreover, the frisk must be limited to an intrusion on the person’s rights that is reasonably necessary to discover weapons.

In executing the frisk, the officer initially must pat down only the person’s outer clothing. If the officer detects an item that feels like a weapon, he may reach into the person’s clothing to remove it. Additionally, if during the pat down an officer feels something with a contour or mass that gives the officer probable cause to believe that the object is contraband, he may reach inside the clothing and remove it.

Attacking the Prosecution’s Evidence Obtained from a Stop and Frisk

Lawyers trained in criminal law often attack a stop on the grounds that the circumstances did not support the finding of reasonable suspicion required by the law. For example, a police officer’s “hunch” alone is not sufficient to justify a stop. Similarly, an officer is not allowed to stop someone just because the officer is in a dangerous neighborhood. Because “reasonable suspicion” is a difficult standard to define, judges often have to hear the evidence and make a determination.

Similarly, it is often possible to attack the detention following the stop as being unreasonably long. If the court determines that an arrest actually occurred, rather than only a stop, suppression of the evidence obtained by law enforcement may be warranted.

Motor Vehicles

Fourth Amendment protections also apply to motor vehicles. However, based on several rationales, including the likelihood of the loss of evidence resulting from the high degree of mobility of an automobile, the law frequently permits warrantless searches of motor vehicles.

Probable Cause

If a police officer has probable cause to believe that a stopped motor vehicle contains evidence of a crime, and it is not practicable to obtain a search warrant, the officer may search the car without a warrant. In essence, the mobility of the motor vehicle is treated as an exigency sufficient to permit the search. The important distinction here is that the police officer is making the probable cause determination, rather than a detached and neutral magistrate. Importantly, the U.S. Supreme Court has stated that the probable cause determination must be based on objective facts that would support the issuance of a search warrant by a magistrate.

Attacking Vehicle Searches

If a criminal prosecution involves evidence obtained from the stop and search of a vehicle, a trained criminal defense lawyer may be successful in suppressing the evidence. An attorney can carefully question the law enforcement officer and attack the finding of probable cause.

Additionally, the stop of the automobile must be lawful. Investigatory stops constitute seizures under the Fourth Amendment, and a peace officer must possess a reasonable suspicion that the driver has committed an offense. If there is not a particularized and objective basis for the law enforcement officer to suspect criminal activity, the improper stop should result in the suppression of any evidence obtained from the stop.

For example, in one Arizona case, a law enforcement officer pulled over a motorist who allegedly momentarily crossed the white line on the road with one tire. The officer admitted that the driver otherwise drove very safely on a dangerous road. After being stopped, the driver consented to a search of her car and the officer found over one hundred pounds of marijuana. Nevertheless, the court found that the driver did not violate a traffic law and that the stop was therefore improper. The court suppressed the evidence.

If the police have seized evidence that could be used against you while searching you, your vehicle, or other property, it’s time to call a criminal lawyer.  Invoke your right to contest an illegal search of a vehicle or your person.  Call Howard Snader at 602-899-0590.