Do you understand your Fourth Amendment right against unlawful searches
and seizures? Few people do, and law enforcement often takes advantage
of the average person’s ignorance regarding their rights and uses
it to perform searches, gather evidence and build cases against them when
they would otherwise be unable to do so. In this blog we will discuss
the two most common scenarios where you need to protect your rights: In
your vehicle, which will be part 1; and, on the street, which will be
part 2 next week.
After being stopped for a traffic violation the officer bends down low
to get a good look into your car and says, “You don’t mind
if I search your car, do you?” This is cop speak for:
- “I have a hunch you may have something illegal in your car,”
- “I don’t smell anything or see anything that gives me a valid
reason to search your car,” and
- “I wonder if you are dumb enough to help me find a reason to arrest
Knowing your rights and what to do during the traffic stop can mean the
difference between going home and spending the night in the St. Johns
Is it a legal stop?
In order to stop a vehicle in Florida the officer must have probable cause
to believe a traffic infraction has been committed or is being committed;
or a reasonable suspicion that a crime has been, is being or is about
to be committed. For example, if an officer observes a vehicle he believes
to be speeding and is able to confirm his suspicions with a speed measuring
device (such as a radar gun or by pacing the vehicle), that officer will
have probable cause to believe a traffic infraction has occurred (speeding)
and is legally justified in stopping that vehicle. Once the vehicle is
stopped, the law allows the officer to detain the driver of the vehicle
long enough to run a check of the driver’s paperwork, including
a check for warrants, and to issue a citation or warning for the infraction
observed. If the officer does not notice anything that would give him
a reasonable suspicion that a crime has been, is being or is about to
be committed during the stop he must then release the driver after issuing
the citation or warning.
Is it a legal detention?
If, during the encounter, the officer develops a reasonable suspicion that
a crime has or is being committed he may then further detain the driver
and the vehicle to investigate that suspicion. The most common ways this
happens is if the officer smells marijuana or sees what he believes to
be drugs or other contraband such as weapons in the car. Again, if no
reasonable suspicion arises, then the officer must not detain the driver
Is it a legal search?
In many cases the officer may not have noticed anything during the stop
that gives him or her reasonable suspicion that a crime is being committed,
but for whatever reason they get the sense that something is not quite
right. In this scenario it is typical for the officer to ask the driver
if there is anything illegal in the car. If the driver indicates that
there is, they have essentially given the officer all they need to search
the vehicle and at the same time made a statement that demonstrates that
the driver had knowledge of the contraband. In short, the driver has just
voluntarily given the officer everything they need to search for and find
the illegal item, arrest the driver for possessing it, and prove the case
against the driver in court. It doesn’t matter how much pressure
the officer may put on you or how many times they promise you that honesty
will result in them not arresting your or going easy on you: DO NOT EVER
ADMIT THAT ANYTHING ILLEGAL IS IN YOUR CAR!
If you passed the first test and did not admit to anything illegal being
in your car, the officer will typically come at you from another angle.
They will ask for your permission to search the vehicle. For reasons I
cannot comprehend as a criminal defense attorney, a startling number of
people give law enforcement consent to search their vehicle despite knowing
there is something illegal inside. It is important to realize that if
an officer is asking for permission to search a vehicle it is because
he or she probably has no legal basis to do so. If probable cause existed
to search the vehicle the officer would not need and would not be asking
for permission. DO NOT EVER GIVE CONSENT TO SEARCH YOUR VEHICLE!
Even if you don’t have anything illegal in your car, consenting to
a search is not a good idea. I have spoken to many people over the years
who call me wanting to sue a police department for vandalism or damages.
They tell me stories of officers literally tearing apart the interior
of their cars, pulling the side panels off their doors, and destroying
their trunks looking for something illegal. When the officers don’t
find anything, the people are free to go, but their vehicles have been
badly damaged by the search.
Is it a legal detention still?
As you would expect, if you have passed the first test (no admissions)
and the second test (no consent) the officers start to get upset. How
dare a driver know their rights! At this point a common threat is that
if the driver does not come clean and / or give consent to search the
vehicle the officer will just call in a drug dog. This causes a large
number of people to panic and give consent to search, or in some cases
even admit the contraband is in the vehicle. Don’t be one of those people.
The answer to the initial question is FALSE, detaining a driver for longer than is necessary to issue a traffic infraction
or warning to allow a canine unit to arrive will generally be an unlawful
detention and the resulting search will be deemed illegal. The exception
to this is when it is a canine unit that makes the stop, and the dog is
thus already on scene. However, this is a rare exception as most canine
units are not on traffic patrol.
If law enforcement conducts an illegal search of a person’s vehicle,
anything discovered during the search is inadmissible and may not be used
as evidence against that person in a criminal proceeding. This is known
as the “Fruit of the Poisonous Tree Doctrine” in criminal law.
Remember to Just Say NO!
No Admissions. No Consent to Search. And if your interaction with law enforcement
results in your arrest, make No Statements and contact the Albaugh Law
Firm immediately for help.