Protecting Your Rights
The fourth amendment to the US Constitution prevents the government from unreasonably searching or seizing its citizens.
“What is a search?” A search is an examination of something private. It includes searching your clothes, your body, or anything that belongs to you that cannot be seen by the public. A search can be as simple as asking someone to open their hand or moving a newspaper off a car seat to what is underneath.
“What is a seizure?” A seizure is when the police limit your freedom. A traffic stop is a seizure, telling someone to “freeze” is a seizure. Handcuffing or arresting a suspect is another form of seizure. Confiscating property is also a seizure.
If an officer unreasonably or illegally searches or seizes, any evidence that is found because of that search or seizure may be excluded from the trial. Arguing these two fourth amendment violations is the most common way drug cases are won.
Determining what is a reasonable search or seizure is a very complicated area of law with more exceptions than room in this book. Reading this book is never a substitute for consulting with an attorney.
However, the following examples are just some of the common ways that officers illegally search or seize suspects in drug cases. If you believe you were illegally searched or seized, or if you think one of these scenarios apply to your case, discuss it with an attorney immediately.
I Did Not Feel Free to Refuse the Search.
An officer can search or seize you without any evidence if you willingly give them permission. Consequently, most officers will ask for permission to search whenever they have even the slightest suspicion. Officers are not allowed to use their position and authority to force people’s consent.
The Supreme Court of the United States says that a suspect’s consent to search is only valid if a reasonable person in the suspect’s shoes would feel free to ignore the officer’s request.
Some factors that may invalidate a search or seizure include:
- Officer uses aggressive body language or tone of voice when requesting the search. (Example: Officer gets in your face and asks to search the car like he’s a drill instructor.)
- Officer uses profanity or offensive language. (Example: Officer says, “Can I search the f***ing car or not?!”)
- Officer repeatedly asks for permission to search. (Example: The suspect agrees to allow a search after an officer asks four or five times).
- The officer accuses you of criminal activity before asking to search. (Example: “We think you are selling drugs on this street corner, now let me see what is in your hand.”)
- The officers corners or surrounds the suspect while asking permission. (Example: Three officers surround a driver who was taken out of his car on a secluded road and ask to search his car.)
- The officer threatens the suspect if they do not agree to the search. (Example: “If you don’t let me search your car I am going to make you sit here for an hour until the K-9 unit arrives.” Or, “If you don’t let me search you I am going to arrest you.”)
- The officer asks permission while or after drawing his weapon.
- The officer touches the suspect while asking permission. (Example: The officer puts his hand on the suspect’s shoulder and says, “Let me search you.”)
- The officer asks permission to search after an illegal seizure. (Example: One officer illegally drags the suspect out of their car and cuffs them without justification and a second officer then comes along and politely asks for permission to search the car.)
If any of these scenarios sound similar to your case, contact an attorney immediately. You may have an important defense.
The Officer Asks for Permission to Search After Beginning the Search.
An officer can search or seize you without any evidence if you willingly give them permission. However, they must get your permission before they begin the search.
If you consented to a search, make sure you tell your attorney when you gave your consent and when the officers began the search and when they found any evidence. If the officers searched your car before asking permission, the search may have been illegal.
The Officer Asked the Wrong Person for Permission to Search.
In order to get permission to search a citizen’s property, the police must ask the person who actually owns the property. Renters are treated like owners in many cases as well.
A guest of yours usually cannot give the police permission to search your private room or private storage area. A passenger normally cannot give the police permission to search another person’s car. A landlord cannot give permission to search a rented apartment in many situations. A parent cannot give permission to search their adult child’s private room.
If the police asked someone other than you for permission to search or seize your property, talk to an attorney immediately.
The Officer Stopped Me for No Reason.
Traffic stops are seizures. If an officer pulls you over, that is a seizure. If an officer pulls up to a pedestrian or a parked car and activates the cruiser’s emergency light, that is usually considered a seizure as well. If an officer verbally or with hand gestures tells you to “stop” or “pull over,” that is also typically a seizure.
In order to legally do this, the officer needs to have a reasonable suspicion that illegal activity or an emergency has occurred. The illegal activity can be extremely minor, such as a dead taillight, speeding, dangling objects from the rearview mirror, obscured license plate, or a blown tag light.
However minor the criminal activity, the officer must be able to articulate why he believes the illegal activity was occurring. Racial profiling, vague accusations of “suspicious activity,” or driving away when the police arrive is not usually enough.
Unjustified traffic stops most often occur when the suspect is already parked or when they are walking. Many officers do not realize that pulling up and turning on their lights may be the same as a traffic stop.
The Police’s Search Went Too Far
When the police are allowed to search something, there are always limits to the scope and manner of their search.
If a person gives the police permission to search their car, the police cannot start tearing out the door panels and ripping up the carpet. This is because a reasonable person would not have interpreted giving permission to include damaging the car.
If the police are allowed to search a car, that right may not include searching bags and containers inside the car. Also, it may not include patting down the driver and passengers.
The police can go too far with search warrants as well. If a search warrant allows an officer to only search a home, the officer cannot use the search warrant to justify searching the suspect’s body, pockets, or car.
When an officer justifies a search based on a probable cause or reasonable suspicion, the search must be reasonably limited to discovering evidence of the suspected illegal activity.
For example, if an officer sees a gun-shaped bulge in the waistband of a suspicious person, the officer may be allowed to stop and pat the suspect’s waistband to feel if it is a gun. This suspicion alone does NOT allow the officer to then search the suspect’s backpack or car.
If an officer pulls someone over for a traffic violation, the officer can detain the driver while running their driver’s license and writing a ticket. But it does not mean the officer can keep the driver on the side of the road for over an hour, interrogate them about unrelated crimes, or search the car for drugs. That’s going too far.
Invasive body searches, strip searches, and body cavity searches are not permitted unless an officer has very strong evidence to believe that such a search is necessary and the search is done in a way that minimizes the invasion of privacy (i.e. the officer is the same gender and the search is done in a private area out of the public’s view). These types of searches are not normally allowed.
If you were searched or seized and the officers took too long, were too invasive, or went too far, then talk to an attorney immediately.
Searches or Seizures Based on a 911 Call or a Tip
The police need certain evidence to search or seize a suspect against their will. The police cannot get around this rule just because they get a tip or a phone call from a citizen or another police officer.
The US Supreme Court has said that if a police officer wants to search or seize someone because of a tip or 911 call, then the person who called the police must be 1) reliable and 2) knowledgeable.
This means the officer must have evidence that the tipster or caller is trustworthy and has also based their tip on actuals facts not just hunches. Most of the time, tips from citizens or 911 calls are not enough to justify a search or a traffic stop.
Here are some examples of illegal search and seizure that are based on tips.
- A neighbor calls 911 because two suspicious people are parked in a car along the street. The police arrive and pull up behind the parked car with their emergency lights activated. (This is illegal because the officer does not know the person calling and does not know what makes the car’s occupants suspicious).
- An informant calls the police to report that he thinks two guys are selling drugs on the street corner in front of his house. The police arrive and detain two men matching the description in front of the house. (This is illegal because the informant said nothing to the officer that would let the officer know whether his suspicions were based on facts or a mere hunch)
- An informant whom a police detective has worked with many times, tells the detective that there is an adult man sitting on a park bench with three crack rocks in a baggy in his front right pocket. The police go to the park and see three adult men and pick one to detain and search. (This search may be illegal because the police could only guess the identity of the suspect).
If the police searched or seized you based on a 911 call or tip, talk to an attorney immediately.
Police Search as a Result of an Illegal Arrest
The police can search an arrested suspect before taking them into custody. The first search occurs before the suspect is placed in the police cruiser. Another search occurs at the jail during processing.
However, if the police illegally arrest someone, the police cannot use the illegal arrest to justify the search.
For example, a suspect is arrested outside a bar for being drunk in public. The officer arrests the suspect without breathalyzing them or checking to see whether they are drunk. While searching the suspect the officer finds a bag of weed and charges the suspect with possession of marijuana.
If a judge decides that the officer did not have enough evidence to justify arresting the suspect for being drunk in public, then the arrest was illegal, the search was illegal, and the possession of marijuana case will likely be dismissed.
If you were searched as part of an arrest for another crime, talk to your attorney about the facts surrounding the officer’s reasons for arresting you.
The Police Searched Something Remote as Part of the Arrest
When the police arrest a suspect, they are allowed to search the suspect and their possessions that are immediately surrounding them at the time of arrest (for example, their pockets, clothes, and any bags they are carrying with them).
A search as part of an arrest must be limited to searching the property immediately around a person at the time of arrest. An arrest search should not include bags, cars, or areas of the home not immediately around the person at the time of arrest.
A common example of a bad arrest search is when an officer arrests a person on the side of the road after getting them out of their car to talk for a few minutes, and then searches their car. The judge may decide that the car was too far away from the scene of the arrest to be included in the arrest search. The same rule applies to bags, homes, apartments, and other property.
Invasive body searches, strip searches, and body cavity searches are not permitted at the time of arrest unless an officer has very strong evidence to believe that such a search is necessary.
If the police when overboard with their arrest search, talk to an attorney immediately.
I Revoked My Permission
A person can consent to a search and then revoke their consent. If a person tells an officer that they no longer agree to the search, the officer must stop immediately unless they have enough evidence to justify a search without consent.
Typically, when people revoke their consent they often do so timidly and the police just continue to search. If you said anything during the search that suggested that you were no longer comfortable with the search, tell your attorney immediately.
The Officer Who Comes to Trial Was Not the Officer Who…
In court, a police officer usually cannot testify to things that they did not witness themselves. During many arrests, and some traffic stops, multiple officers are involved. In these situations, the officer who made first contact is usually the only one who talks to the suspect, does the searching, and makes the arrest. The other officers are supposed to aid the arresting officer only in the case of an emergency.
If multiple officers are involved in the investigation, the arresting officer may be forbidden from testifying about what the other officers heard, saw, or found. For example, if three officers search your car and one of those officers finds something, the officer who found the item is usually required to be the one who testifies to the search results. Without the correct officers present at trial, the case may be dismissed.
If any officer, other than the arresting officer, pulled you over, talked to you, participated in the search, found evidence or interacted with you, discuss it with your attorney immediately.
The Police Impounded My Car for No Reason
The police are allowed to impound a car if it is illegally parked on a public road. Typically, this happens when an officer stops a driver who is then arrested. If the car is left on public property and is not legally parked, then the police will usually tow the car.
The police are allowed to search a car they are impounding in order to inventory the contents. The purpose of this search is to make sure nothing is stolen out of the car at the impound lot. However, if the police find drugs or other evidence during the impound search, it can be used at trial.
Sometimes the police will illegally impound a car in order to search it. If any of the following situations apply to your case, your inventory search may have been illegal.
- The police searched your car before arresting you.
- The car was parked on private property (for example, private parking lots or driveways).
- The car was legally parked.
- There was a licensed driver at the scene who could have driven the car away.
If the police found evidence against you while searching your car as part of an inventory search and you believe the police illegally impounded your car, then contact an attorney immediately to discuss possible defenses.
The Police Were Trespassing Prior to the Search
Officers can search a car, home, or person if they can see, smell, or hear evidence of criminal activity. This is called the “plain view doctrine.” A typical example is an officer walking down the street, looking through the window of a parked car, and seeing drugs on the seat. The officer can then enter and search the car.
However, this rule does not apply when an officer trespasses or performs an illegal search. Here are some examples of illegal searches in which the plain view doctrine does not apply.
- An officer opens a car door to get a better look inside and sees some drugs.
- An officer walks around the side of a house peeking through basement windows and sees drugs.
- An officer walks into the open garage of a house and finds drugs.
- An officer knocks on your door, talks to you in the entryway, and then steps into your house uninvited.
If the police were trespassing when they found the evidence against you, or if any of these scenarios are similar to your situation, contact an attorney to discuss any possible defenses you may have.
Miscellaneous Search Issues
There are many other ways in which the police may illegally search or seize someone. There is no substitute for talking to a criminal defense attorney who is familiar with the volumes of search and seizure cases.
In order to help your attorney defend you, make sure you tell him or her as much as you can about the following facts of your case:
- The reason the police stopped or contacted you
- Every question they asked you
- Every answer you gave them
- What they searched
- At what point they conducted the search
- What they found
- Who it was that found it
- Where it was when they found it
Did the police searched you illegally and charge you with a crime in Northern Virginia? Is so? Call Nichols & Green pllc (703) 383-9222 for a free consultation.
At Nichols & Green we defend hundreds of people charged with crimes each year. Criminal defense is what we do at Nichols & Green so defending peoples’ constitutional rights against illegal searches is what we do.
If you think the police in Northern Virginia searched you illegally during a criminal investigation, call Nichols & Green pllc at (703) 383-9222 for a free consultation. We will be happy to discuss your case and what we can do for you.