Phillips & Ingrum

Illegal Search and Seizure

By Jay Ingrum

Phillips-Ingrum-Headshots-5_finalA police officer may stop a motorist for a violation of traffic laws.  The stop is valid even if the officer used the traffic violation as a pretext for stopping the car.  The United States’ Supreme Court has upheld such pretext stops as constitutional under the 4th Amendment to the United States’ Constitution.

Once a police officer has a motorist stopped on the side of the road, the officer may desire to search the motorist’s vehicle.  The officer may ask for consent to search the car.  If the motorist denies consent to search, then the officer will likely seek other ways to legally search the car.  The officer may find probable cause to search the car.  For example, an officer might find probable cause if he or she smells marijuana in the car.  If the officer arrests the motorist, then the officer can search the car incident to a lawful arrest.  Also, if the officer sees any illegal contraband in plain view, then the officer may search.  The officer does not have to ignore anything that they see in the car.  Further, the officer could call a Drug Task Force officer to bring a drug dog out to the scene to sniff around the car.  If the drug dog alerts or hits on the car, then the officer may search the car.  An officer may also pat you down for weapons for his or her safety.  If the officer feels anything that they can give specific facts that led them to believe it was illegal contraband, then they can search your person under the plain feel doctrine.  Finally, the officer can obtain a search warrant from a judge to search the car.

Now, you may be asking yourself, “How long can motorist be detained?”  The answer is, “not too long.”  The time that a motorist is detained must be reasonable under the totality of the circumstances.  So, the reasonableness will be up to the interpretation of a judge.  Another question is, what questions can be asked beyond the scope of the initial reason for the traffic stop?  There is no bright line rule.  At the time of the stop, the officer will be engaging in the investigatory stage of the stop.  At that point, the motorist is not under arrest, and may be free to leave, even though oftentimes the motorist does not feel free to leave.  Therefore, if the motorist is not in custody i.e. in handcuffs or in the back of the police car, then it is not a custodial interrogation.  If it is not a custodial interrogation, then an officer does not have to read a motorist the infamous Miranda warning from Miranda v. Arizona, which would tell the motorist that they have the right to remain silent, right to counsel, etc.

There is room to argue that it was an illegal stop or an illegal search and seizure in almost every case.  If it is a illegal stop or an illegal search and seizure, then anything and everything that comes after the illegal stop or illegal search and seizure is inadmissible as “fruit of the poisonous tree.”  Any evidence that was illegally obtained should be suppressed or excluded by the judge.  However, this does not always happen.  Many judges look for a way to admit the evidence, because without it the State’s case would oftentimes be dismissed.

The bottom line is that if a police officer wants to search your car, then they are probably going to search it one way or another.  Generally, you should be polite, courteous, and follow an officer’s instructions.  However, if you deny the police officer consent to search your vehicle, and then the police officer must follow the law or it could cost them their entire case against you.