QUESTION
Is it legal for the police to conduct a vehicle search?
Asked on Nov 03rd, 2011 on Criminal Law - Texas
More details to this question:
When an officer pulls over a vehicle, can they search the vehicle without a warrant and without the permission of the owner? There was no probable cause. I was ticketed for no proof of insurance, which the driver did have but handed the officer the old proof card and offered the newer one when the officer told them but the officer told him that "It is too late." The officer then proceeded to go through the vehicle with a dog that didn't get a "hit" for any drugs. He then pulled the keys out of the ignition and opened the trunk and went through a back pack emptying it out and dumped a prescription of Antivert (for dizziness) into the backpack. I don't know if it is a prohibited drug.
21 ANSWERS
It does not sound like the police had any reason to search the vehicle.
Answered on Jul 03rd, 2013 at 2:25 AM
Criminal Law Attorney serving Howell, MI
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Law Offices of Jules N. Fiani
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No.
Answered on Jun 02nd, 2013 at 10:04 PM
Jacob P. Sartz
I'd recommend you retain a lawyer. If you cannot afford to retain a lawyer, the court may appoint you one at the public's expense. Speaking generally, tf there are issues with how a search was conducted, the defense may be able to file a motion to suppress and prohibit the alleged incriminatory evidence from being admitted at trial. However, motions to suppress should only be filed if they are timely researched, properly prepared, and part of the trial strategy for a particular case.
Answered on Nov 07th, 2011 at 8:42 PM
The police may only search a car if they believe that there is something illegal in the car or if they ask and receive permission from the driver or owner. The police have to have a reason for stopping the car in the first place. Not having proof of insurance is something that the officer could not have known by looking at the car or the way it was driven. The officer needs reasonable suspicion to search your backpack even if the car owner gives permission to search the trunk. To search the car with a dog requires the same cause. With the facts you supplied; the officer did not have probable cause to pull your car over. If the stop was legal and the only violation was proof of insurance the officer not taking the proof when offered before the search is wrong. If the officer did not see anything from his vantage point outside of the car there was no probable cause to search the car with or without a police drug dog. Without finding illegal contraband in the passenger area of the car and not having any other probable cause the officer did not have a right to search the trunk. If he had permission to search the trunk he needs probable cause or permission to search the backpack. If you had an illegal prescription for the Antivert and your name was on the prescription bottle you should not be charged. Guess what? The police report will not read the same as your facts in your question. Your attorney will have to review the police report with you to see if you have good cause for a suppression motion. When talking with your attorney you need to have a prescription from your doctor to show that it was legal for you to have the Antivert on you. You do need an attorney on this case working for you. If you can prove the facts as you told them you should have the case dismissed.
Answered on Nov 07th, 2011 at 2:03 PM
Michael J. Breczinski
No it is not legal to search the vehicle under those circumstances and I don't think that the drug is illegal.
Answered on Nov 07th, 2011 at 9:25 AM
Appellate Practice Attorney serving Clinton Township, MI
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Thomas J. Tomko, Attorney at Law
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There are several reasons why an officer could search a car. The "sniff" of a dog is a search. However, nothing you describe would seem to justify the "sniff" search of the vehicle. The remedy for the illegal search is suppression of discovered evidence. Yet in your case, there seems to be nothing to suppress, as you have not been charged with a crime discovered as a result of the search. You should hire an attorney to further review your case and determine whether it is significant that you were subject to a search which may have been illegal. I hope that this was helpful.
Answered on Nov 07th, 2011 at 8:41 AM
A search warrant or permission to search is required unless the officer is searching for evidence related to the reason for the arrest. A traffic stop and lack of proof of insurance does not give rise to probable cause to search. The search, as you have described it, is illegal.
Answered on Nov 07th, 2011 at 8:25 AM
The question here is not whether the search was "legal" but whether any of the evidence found was done so in an improper way, and is now going to be used against you. The police can legally search what they want in that you cannot have a police officer arrested for doing an improper search. Now if the drugs found were illegal, and the police now intent to charge you with a crime, the evidence found could not be used against you to charge you with the crime as it was found in way that violated your 4th Amendment Rights.
Answered on Nov 07th, 2011 at 7:38 AM
Seth D. Schraier, Esq. Law Office of Seth Schraier 3647 Broadway Suite 4G New York, New York 10031 Cell: (914) 907-8632 www.SchraierLaw.com
Drug Crimes Attorney serving Philadelphia, PA
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Laguzzi Law, P.C.
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Seeing as you probably don't know what reasonable suspicion or probable cause is to determine whether or not the police had it, you have to talk about the specifics of the case with an experienced criminal defense attorney. Taking the keys out of the ignition for the search of the trunk definitely is not something that can be done without a warrant or consent. Proving that is what happened is a different story.
Answered on Nov 07th, 2011 at 7:24 AM
Adoptions Attorney serving Lansing, MI
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Austin Legal Services, PLC
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Without permission the police will need probable cause. Just because they didn't cite you any doesn't mean they didn't have any, it just means that they didn't tell you what it was. Eventually they will have to in order to make any charge hold up in court. If any incriminating evidence was recovered as a result of the search, it could be open to challenge via a suppression motion. Have an experienced criminal attorney review the police report in order to give you the best options on how to proceed.
Answered on Nov 05th, 2011 at 1:57 AM
Criminal Law Attorney serving Los Angeles, CA
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Law Office of Edward J. Blum
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That sounds like a questionable search. If you were pulled over for no insurance, what evidence could they possibly be searching for? Even if you were taken into custody the cops can only search you and the area over which you have control for weapons.
Answered on Nov 05th, 2011 at 1:23 AM
Daniel Kieth Martin
As you have described it, no that was not legal. However the way the officer describes it in his report is probably different. I believe you when you explain how it happened but some officers are not honest. Talk with a criminal defense lawyer about this case. He or she may write a suppression motion for you.
Answered on Nov 05th, 2011 at 1:10 AM
Criminal Defense Attorney serving Montrose, NY
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Law Office of Jared Altman
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The search sounds illegal.
Answered on Nov 05th, 2011 at 1:09 AM
There are times when vehicles can be searched without a warrant or consent, but this does not sound like one of them. It also sounds like you may be innocent on the insurance violation.
Answered on Nov 05th, 2011 at 1:00 AM
Criminal Law Attorney serving Lancaster, NH
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Harden Law Office
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Searches require an exception to a warrant, ie consent, plain view. If placed under arrest police may use an inventory as basis to search. This exception was permitted by the US Supreme court in Gang.
Answered on Nov 04th, 2011 at 11:44 PM
Bankruptcy Attorney serving Federal Way, WA
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Freeborn Law Offices P.S.
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Sounds like the officer may have exceeded his authority, especially when he opened the trunk. Consult with local legal counsel.
Answered on Nov 04th, 2011 at 11:33 PM
Divorce Attorney serving Little Rock, AR
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Law Office of Kathryn L. Hudson
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That was an illegal search. In 2009 the Supreme Court in Arizona v. Gant overturned giving the police the right to search a vehicle with the only probable cause being a traffic violation. Now, to search without a warrant the reason for the search has to be connected to the alleged crime that led to the stop. In other words, if the stop was for suspicion of driving under the influence the police could search the car looking for alcohol or drugs because the reason for the stop is connected to the search. Stopping a driver for a routine traffic violation does not give the police the right to search without a warrant absent another exigent circumstance such as smelling drugs or seeing contraband in plain view. Once the driver is secured and there is no danger to the police officer the car not be searched.
Answered on Nov 04th, 2011 at 6:36 PM
Criminal Defense Attorney serving Fullerton, CA
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The Law Offices of John W. Bussman
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The rules surrounding vehicle searches are incredibly complicated and nuanced, so it would probably take a few hours to explain them all here. Long story short, you don't have standing to assert an unlawful search unless the cops found something that you shouldn't have had. Were you arrested and charged with possession of Antivert? If not, what's the problem?
Answered on Nov 04th, 2011 at 6:01 PM
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Search and seizure is very technical and spoiler alert: cops lie about probable cause. No, they should not search your car, but they may "smell marijuana" or something else like that. You need to hire an experienced drug trial attorney in your area and fight it with all you got.
Answered on Nov 04th, 2011 at 5:28 PM
Based on what you're saying it was an illegal search, but cops are trained to fill in details that create probable cause. For example, if the cop says he smelled something resembling drugs, that would be probable cause to search the vehicle. You need a lawyer to go to court and challenege the search on 4th Amendment grounds via a 1538.5 motion.
Answered on Nov 04th, 2011 at 5:18 PM
Assault Attorney serving Richardson, TX
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From your description there may be a suppression issue if the criminal case is filed.
Answered on Nov 04th, 2011 at 5:17 PM