Violations of “Search and Seizure” Laws: How they Impact Prosecution

by James E. Novak, P.L.L.C.
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Drivers with Marijuana in their vehicle, who consent to search may be easier to prosecute than those who expressly refuse.

542938_officer_on_duty.jpgMost people understand that they have a Fourth Amendment right under the United States Constitution to be free from unlawful searches and seizures. They may know that the police must usually have probable cause to get a warrant and must have a warrant to search a car or home. They may also know that the police cannot use evidence obtained illegally, in violation of a defendant’s constitutional rights. Violations of a person’s Fourth Amendment Rights involving search and seizures in drug crimes, may compromise the State’s ability to prosecute a suspect.

Today we will take a closer look at what the Fourth Amendment protections, as they apply on a practical level with an illustration. Here’s common question: “If I’m driving around with several pounds of Marijuana in my vehicle, do I have the right to refuse the request of a police officer who wants to search my car without a warrant?”
The Supreme Court has ruled that people have less expectation of privacy in their cars than in their homes and therefore there are several conditions under which it may be acceptable to search a car without a warrant. But the most obvious scenario in which police can legally search your car is if you give consent.

Exceptions to the Need for a Police Search Warrant

Consent is an “Exception” to the general rules governing search and seizure. So a consensual search is one where a person agrees to let the police search their vehicle without a warrant to do so.

The Supreme Court held that so long as a reasonable person would feel free to disregard the police officer and go about his or her business, the encounter is a consensual one. In reality, however, most drivers would not feel comfortable refusing a police officer that had pulled them over and wanted to search the vehicle. In some instances a driver with marijuana in the trunk of his car who expressly refuses to consent to a search may have a stronger case than one who consents to the search. Police officers must have a probable cause to search or a reasonable suspicion of illegal conduct before searching in order to use any evidence gathered.

Alongside consent, another exception to the rule against warrantless searches and seizures is the “plain view doctrine”. This applies if, for example, the police pull you over because you made an illegal lane change and then see marijuana you planned to sell sitting in the back seat or see a pipe in the front passenger seat next to you. In either of those cases, the court would use a three-prong test:

(1) Was the officer lawfully present?
(2) Did the officer have a lawful right of access to the object?
(3) Was the incriminating character of the perceived object apparent?

If the answer to all of these questions are “yes” then the plain view doctrine exception will apply, and a warrant is not needed. In the situation described, the police officer had a right to stop you about your illegal lane change and could see the incriminating marijuana or pipe in the car. Therefore, this evidence could be used against you at a trial for marijuana possession or sales.

The stop itself, by police requires “reasonable suspicion” that a violation of the law has occurred or is in progress. On the other hand, if the marijuana was inside a backpack on the floor of your car and the police officer stopped you in absence of “reasonable suspicion” the plain view doctrine might not be applicable, and the stop itself may be unconstitutional.
Another exception to the search warrant rule is the “search incident to arrest.” This exception might arise in the previously described scenario if the police decided to arrest you for a DUI because you were clearly intoxicated and talked about a gun. In the process of arresting you, they might pat you down for weapons. If you are carrying bags of marijuana somewhere on your person, it will be found in a search incident to your arrest and will be admissible in a trial for marijuana possession. The police may also use finding the marijuana as a reason to search the rest of your car.

On the other hand, if nothing suspicious was found on your person and you were placed in a police car, the Arizona Supreme Court determined in 2007 that the police may not come back to your car once the arrest is over and search it without a warrant.

Overview of Search Warrants

These principals described above are broad, and it is an in an area of law that has changed over time. These protections continue to be tested and challenged in courts throughout the country. Current technology makes it relatively easy for police to obtain a warrant within a few minutes, but they must still have probable cause to get one. A number of law enforcement agencies use electronic search warrant programs to request one from a judge on call. They simply complete a form including information describing their justification of “probable cause”. It is within a matter of minutes that the judge reviews the request and approves or denies it electronically.

If you are arrested for marijuana possession or sales, an experienced criminal defense attorney may be able to look at the circumstances in detail to determine whether the evidence was obtained legally or not. Contact the experienced criminal defense attorneys of the Law Offices of James Novak at 480-413-1499 for more information and a powerful defense.


https://blog.arizonacriminaldefenselawyer.com/2013/07/how-violations-of-search-and.html