searches

[bigkarch]

The Plain View Doctrine

Police officers do not need a warrant to search and seize contraband or evidence that is "in plain view" if the officer is where he or she has a right to be when the evidence or contraband is first spotted. For instance, the police may search for and seize marijuana growing outdoors if they first spot the marijuana from an airplane or helicopter, since the marijuana is deemed to be in plain view. Similarly, if an officer walks by a car and spots evidence or contraband through the car window, the plain view doctrine applies and a search may be conducted without a warrant. The same rule would apply if an officer is in your home for other valid reasons and spots drugs on a table or cabinet.

Search Made in Connection With an Arrest

Police officers do not need a warrant to make a search "incident to an arrest." After an arrest, police officers have the right to protect themselves by searching for weapons and to protect the legal case against the suspect by searching for evidence that the suspect might try to destroy. Assuming that the officer has probable cause to make the arrest in the first place, a search of the person and the person's surroundings following the arrest is valid, and any evidence uncovered is admissible at trial.

To justify a search as incident to an arrest, a spatial relationship must exist between the arrest and the search. The general rule is that after arrest the police may search a defendant and the area within a defendant's immediate control. For example, an arresting officer may search not only a suspect's clothes, but also the suspect's wallet or purse. If an arrest takes place in a kitchen, the arresting officer can probably search the kitchen, but not the rest of the house. If an arrest takes place outside a house, the arresting officer cannot search the house at all. To conduct a search broader in scope than a defendant and the area within the defendant's immediate control, an officer would have to obtain a warrant. However, the police may make what's known as a "protective sweep" following an arrest. When making a protective sweep, police officers can walk through a residence and make a "cursory visual inspection" of places where an accomplice might be hiding. For example, police officers could look under beds and inside closets. To justify making a protective sweep, police officers must have a reasonable belief that a dangerous accomplice might be hiding inside a residence. If a sweep is lawful, the police can lawfully seize contraband or evidence of crime that is in plain view.

Searches of Cars and Their Occupants

Cars may be searched without a warrant whenever the car has been validly stopped and the police have probable cause to believe the car contains contraband or evidence. The reasons why no warrant is required for a car search are:

cars are easily moved and may disappear while a warrant is being sought, and
people driving cars do not have the same expectation of privacy in cars as they do in their homes.
If the police have probable cause to search the car, all compartments and packages that may contain the evidence or contraband being searched for are fair game.

While a police officer cannot search a car simply because the car was stopped for a traffic infraction -- since routine traffic stops are not arrests that would justify a "search incident to an arrest" -- the police can order the driver and any passengers out of the car for safety considerations, even though there is no suspicion of criminal wrongdoing other than the traffic infraction. The police also can "frisk" the occupants for weapons so long as they have a "reasonable suspicion" that the occupants are involved in criminal activity beyond the traffic violation and are reasonably concerned for their safety.

The police are sometimes accused of using technical traffic violations as a pretext for stopping the car for the real reason of conducting a further investigation that often includes a frisk and possible search of the vehicle. Sometimes these types of stops are allegedly based on racial profiling. Whatever the police officer's motives, however, if the officer had a valid reason to stop the vehicle, even a ticky-tack one like a broken rear taillight, the stop is legal. And, if the initial stop is valid, any lawful frisk, search or arrest that follows the stop is also valid.

[Growinboy]

Judges in some districts (more liberal ones) have ruled that searches after traffic stops can only be done with probable cause (plain view, odor of reefer, something that BEGS for THE MAN's attention), otherwise the case/evidence is thrown out. Also, all secondary searches must be done within a reasonable amount of time, ie, no more time than an average traffic stop would take. For example, if joe cop wants to run a k9 through your vehicle to check for drugs but the k9 unit is 30 minutes away, it would be unlawful for the cop to detain you until the k9 got there.

Also, DO NOT use legal advice you get in the this forum or others to argue your case with a cop while you are involved in something with a cop! If the officer is violating your rights and you know it, keep it to yourself and let your attorney know as soon as youre clear.

[hulk_hogan]

hate even thinking abouit this

[SJA]

Also, DO NOT use legal advice you get in the this forum or others to argue your case with a cop while you are involved in something with a cop! If the officer is violating your rights and you know it, keep it to yourself and let your attorney know as soon as youre clear.

Very good point here.

[bigkarch]

Originally Posted by Growinboy

Judges in some districts (more liberal ones) have ruled that searches after traffic stops can only be done with probable cause (plain view, odor of reefer, something that BEGS for THE MAN's attention), otherwise the case/evidence is thrown out. Also, all secondary searches must be done within a reasonable amount of time, ie, no more time than an average traffic stop would take. For example, if joe cop wants to run a k9 through your vehicle to check for drugs but the k9 unit is 30 minutes away, it would be unlawful for the cop to detain you until the k9 got there.

Also, DO NOT use legal advice you get in the this forum or others to argue your case with a cop while you are involved in something with a cop! If the officer is violating your rights and you know it, keep it to yourself and let your attorney know as soon as youre clear.

if the driver consents to a search, then it would be lawful even if he waits for one hour until the dog gets there. but the driver can withdrawal consent and he has to be let go.

[Growinboy]

true, and consent can be withdrawn at any time... thats not the example I gave though...

[Frankster]

Originally Posted by Growinboy

Judges in some districts (more liberal ones) have ruled that searches after traffic stops can only be done with probable cause (plain view, odor of reefer, something that BEGS for THE MAN's attention), otherwise the case/evidence is thrown out. Also, all secondary searches must be done within a reasonable amount of time, ie, no more time than an average traffic stop would take. For example, if joe cop wants to run a k9 through your vehicle to check for drugs but the k9 unit is 30 minutes away, it would be unlawful for the cop to detain you until the k9 got there.

Also, DO NOT use legal advice you get in the this forum or others to argue your case with a cop while you are involved in something with a cop! If the officer is violating your rights and you know it, keep it to yourself and let your attorney know as soon as youre clear.

As far as the K9 unit is concerned: You do not have to let the K9 unit in your car. A K9 that is trained to sniff illegal drugs such as marijuana and cocaine have very strong scents and can smell those things from the outside of the vehicle. The best thing to do in the case of being stopped by a police officer wanting to search your vehicle is to tell them that they can not search your car and that if they want to search it, then they can get the K9 UNIT out there to search it. Once the K9 UNIT gets there and they order you out of your car, then leave your lights on, pull your keys out of the ignition and put them in your pocket. LOCK THE DOORS ONCE GETTING OUT OF THE CAR! If the police ask you why you locked the doors, then tell them that the dogs have strong scents and if drugs were in the car then the dog would be able to smell them from the outside.

[bigkarch]

frankster, your posts is contradictory....once you say its ok to search with the dog and lock you car?..you say get a k9 then that validates a consensual search in and out...and a dog cant smell small quantities in the car..also why leave your lights on

[TheChosen1]

It should be noted that there are occasions, when stopped by an officer (either in your vehicle or on the street), the officer may ask you to "empty your pockets".

It is your rights of privacy that does NOT REQUIRE you to proceed. You can refuse and there is no way that the officer can arrest you for it. In order for you to show identification and "empty your pockets", the officer needs probable cause, and in most case, a warrant. Once you've showed your identification and emptied your pockets for them, you've waived your rights to privacy.

In the event that they have reason to believe that a crime has been committed (scent of drugs in your vehicle or on your clothes, etc.), then that is the probable cause needed for search.