The Criminal Case Process
November 2, 2013
Federal Judge Rules Flashing Headlights is Free Speech
February 7, 2014

The Cost of Consent: What you should know about search and seizure

By Erik Doll

On November 5, 2013, a Wisconsin man was arrested when a wager with his wife went bad.  It seems that John, a Chicago Bears fan, married a fan of the Bear’s longtime NFC North division rival, the Green Bay Packers.  When the teams met for a prime time Monday night matchup, John and his wife, Nicole, devised a unique wager:  If the Bears won, John would get to tase Nicole.  The Bears achieved gridiron glory, beating the Packers 27-20.  Nicole made good on the wager and a video recorded from a cell phone depicted Nicole holding her hands up in the air and laughing as John tased her.   After the police reviewed the video, they determined that it was apparent that Nicole had consented to the tasing.  Nonetheless, the police asked John for permission to search his semi-truck.  The search resulted in the discovery of a taser, and John explained that he had bought a number of them at a truck stop in Virginia.  Unfortunately for John, it is illegal to possess a taser in the State of Wisconsin without a permit.  John was charged with possession of an electronic weapon without a permit, a felony that could result in his incarceration for up to six years.

John may have thought that he was doing the right thing when he consented to the police officers request to search his vehicle.  He may very well have been unaware that it was illegal to possess a taser in Wisconsin without a permit.  He may have thought that if he cooperated with the police, everything would be okay.  After all, this was a bet between consenting adults.  It isn’t uncommon for individuals to make the assumption that if they cooperate with police and consent to a search when asked, they will be given leniency, or the matter will blow over altogether.  In reality, when an individual consents to a search, they are giving away constitutional rights that exist for their protection.  That is exactly what John did when police asked if they could search his vehicle.  The result of John’s consent was that criminal charges were filed against him.  John may have literally talked himself into a jail sentence.

The Fourth Amendment to the United States Constitution prohibits unlawful searches and seizures.  This protection is also embodied in Article 1, § 11 of the Indiana Constitution.  As a general proposition, police must obtain a search warrant in order to conduct a proper search and seizure.  A warrant is a written order by a court that authorizes the police to IVconduct a search of a specific place for specific items.  A warrant is obtained by an application to the court, and must be supported by the police officer’s sworn statement detailing facts and circumstances that are reasonable sufficient to support the belief that a crime has been committed or is about to be committed.   If the court finds that probable cause exists, a warrant will issue.  However, there are circumstances under which police may conduct a search without a warrant.

As John learned, consenting to a search is the equivalent to waiving the rights guaranteed under the Fourth Amendment.  Police officers do not need to establish probable cause when they are given consent to search, because it is reasonable for them to conduct a search when they have been given permission to do so.  However, even if the police are given consent, the search may still not be valid.  For example, the consent may not have been obtained voluntarily, it may not have been given by a person with a possessory interest or control of the property search, it may have been given by a child, or the consent may have been obtained after the search had taken place.

If you have found yourself in a position like John’s, where you consented to a search and now find yourself facing a criminal charge, you are probably wondering what your options are and what you should do about the situation.  You should know that, in some situations, it is possible to exclude evidence that is discovered during a search.  Without the evidence, the State may not be able to obtain a conviction, and the charges against you may be dropped.  However, obtaining suppression of evidence is a complex process.   This is not something you should take lightly or attempt to do on your own.  The Attorneys at Dillon Legal Group, P.C. know the search and seizure laws, and are experienced in handling suppression issues.  If you are facing criminal charges, you should contact Dillon Legal Group for a consultation.

In addition to consenting to a search, another exception to the warrant requirement that frequently results in criminal charges being filed is what is referred to as the “automobile exception”.  Under the automobile exception, police may search a motor vehicle without a warrant if there is probable cause to believe that there is contraband or other items in the vehicle that are related to criminal activity.  This exception is justified by the notion that when you are driving on a public roadway your expectation of privacy is lower than it would be in a place like your home, coupled with the fact that a vehicle is inherently mobile.

Searches conducted utilizing the automobile exception will frequently follow a set of circumstances something like this:  The police officer will initiate a traffic stop for some type of infraction.  This could be a moving violation such as speeding, or an equipment violation such as a burned out headlight.  When the police officer approaches the vehicle, he will note that the driver, or a passenger, is acting in a suspicious manner.  They may be fidgeting, or making movements that make them appear as if they are trying to conceal something.  The police officer may smell the odor of an alcoholic beverage or of burnt marijuana.  The driver of the vehicle may appear to be glassy-eyed or may be slurring his or her speech.  The police officer’s observations will be used to support probable cause to search the vehicle.  The vast majority of police officers will ask for permission to conduct the search, even if they believe they have probable cause.    If they are not given consent, they will search the vehicle based on the automobile exception.  If the search results in the discovery of contraband or other evidence of a crime, depending on the circumstances the driver and all of the passengers may be charged.

When evidence is seized from a vehicle after a stop, there are a number of issues that may be examined to determine whether the evidence can be suppressed.  The facts and the circumstances surrounding the stop may not support an exception to the warrant requirement.  The stop itself may not have been valid; for example, the officer may believe that an equipment violation exists where one does not.  If you have been charged with a crime as the result of a vehicle search supported by the automobile exception, Attorneys at Dillon Legal Group, P.C. will be able to assist you in determining whether the evidence can be suppressed.  The Attorneys at Dillon Legal Group, P.C. know the search and seizure laws, and are experienced in handling suppression issues.  If you are facing criminal charges, you should contact Dillon Legal Group for a consultation.

There are times that a traffic stop will result in an arrest without a vehicle search.  The police officer may determine during the course of the traffic stop that the driver is intoxicated, is a habitual traffic violator, has a warrant out for his or her arrest, or has committed some other crime.  In these cases, the police will impound the vehicle.  When the police impound a car, they can search it for the purpose of taking inventory of its contents.  This is not a search that is conducted for the purpose of looking for evidence of a crime.  The search is conducted to protect the police against claims that items inside the vehicle were lost or stolen, to protect the police from materials in the vehicle that may cause a danger, and to protect the vehicle owner’s property while it is in police custody.  However, even though the purpose is not to search for evidence of a crime, the discovery of contraband or evidence of a crime may result in criminal charges.

In order for an inventory search to be valid, it must be reasonable and must conform to standardized operational procedures.  If the search exceeds the permissible scope of the inventory, it may be invalid.  The impoundment of the vehicle itself may not have been proper.  For example, if the vehicle was parked on private property, there may be no reason for the police to impound it.  The police may not have followed a standard operating procedure when performing the inventory search, or there may not have been a standard operating procedure in place.  Furthermore, the inventory search may have been used as a pretext to avoid the warrant requirement.

One of the issues that arises frequently when a vehicle search results in an arrest is the standing of the arrested individual to challenge the search.  Essentially, the question is whether the person challenging the search has a possessory interest in the vehicle searched.  If that person does not have an ownership interest in the vehicle, or was not granted permission to use the vehicle, they may not be able to challenge the validity of the search.  What this means is that if you are a passenger in a friend’s vehicle who has been charged as the result of a search, you may not be able to challenge the search.  However, there may be exceptions to the standing rule.  For example, while the passenger in the car may not have standing to challenge the search of the vehicle, they may have standing to challenge the search and seizure of the items that they own.    If you have been charged with a crime as the result of a vehicle inventory search, Attorneys at Dillon Legal Group, P.C. will be able to assist you in determining whether the evidence can be suppressed.  The Attorneys at Dillon Legal Group, P.C. know the search and seizure laws, and are experienced in handling suppression issues.  If you are facing criminal charges, you should contact Dillon Legal Group for a consultation.

After police stop a vehicle, they may also be allowed to conduct of “frisk” of its occupants if the police have a reasonable suspicion that the occupants are involved in criminal activity.  While a passenger may lack standing to challenge the search of the vehicle, a passenger who has been arrested following a frisk may have other options to suppress the evidence.  For example, it may be possible for the passenger to challenge the stop of the vehicle.   If you have been charged with a crime as the result of a vehicle inventory search, Attorneys at Dillon Legal Group, P.C. will be able to assist you in determining whether the evidence can be suppressed.  The Attorneys at Dillon Legal Group, P.C. know the search and seizure laws, and are experienced in handling suppression issues.  If you are facing criminal charges, you should contact Dillon Legal Group for a consultation.

As you can tell, search and seizure law is complex and very fact-sensitive.  Don’t risk ending upCome back like John.  Know and exercise your Fourth Amendment rights.  Consult with legal counsel if you are approached by law enforcement.  Don’t let yourself fall prey to an unlawful search that will result in potential arrest and charges being filed against you.

Obviously, every situation is different You need a lawyer.  The attorneys at Dillon Legal Group are here and ready to help.  Bear in mind that this article is not a substitute for legal counsel regarding your situation.  Please call to schedule an appointment about your case.  We look forward to hearing from you.