||Stops, Searches and
In 1789, Congress ratified ten amendments to the Constitution, which
guaranteed certain rights and freedoms, among them, the right to be protected
against unreasonable searches and seizures. The Fourth Amendment requires
probable cause to be shown before a warrant
can be issued and that the warrant must specifically indicate the place
to be searched and things to be seized.
Today, these words still hold true and you, as an individual, are guaranteed
these rights by our Constitution. But times are complicated and law officers
face pressures and challenges greater than ever, sometimes resulting in
shortcuts or even blatant disregard of these rights in the pursuit of
criminals. As a citizen, you should know and defend your rights, but if
you are unsure about your rights, it makes sense to speak to an attorney.
Your Rights When Stopped
Why Speak With an Attorney
What Happens When You are Arrested
Searches Without a Warrant
Searches Without Consent
Searches of Passengers
If You're Served with a Search Warrant
How to Get Your Car Back
Your Rights When Stopped and Questioned by a Police
Police officers routinely ask questions of victims, witnesses and suspects.
Victims and witnesses are encouraged to report crimes and cooperate in
the prosecution of crimes. The reporting of crimes includes answering
questions presented by law enforcement officers and officers of the court
(including personnel at city, district, state and federal attorneys' offices
as well as authorized agents of other government agencies). However, if
you feel that you are a suspect or could later be considered a suspect,
- Inform the police officer that you wish to speak with an attorney
before answering any questions.
- Speak with an attorney before saying anything else to the police
Why You Should Speak With an Attorney First
- What you say to your attorney is protected from disclosure
to others by the attorney-client privilege.
- What you say to a police officer can be used against you, regardless
of whether there is a physical record (either written or recorded) of
What Happens if You Are Arrested and Taken into Custody
- You can inform the police officer that you wish to speak with
an attorney before answering any questions. At that point, the questioning
should stop and you should be provided with the opportunity to speak
with an attorney.
- After a reasonable amount of time, the police officer may return
and begin to ask you questions again. If you have not spoken with an
attorney, you should continue to refuse to answer questions until such
time as you have obtained legal assistance.
Police Searches Without a Warrant
There are numerous circumstances under which a search may lawfully be
made without a warrant. Some general areas of exception where a search
can be made without a warrant are:
- If the safety of the police officer is involved,
- If the police are in hot pursuit of a criminal,
- If they see illegal evidence in plain view,
- If a person consents to being searched, and/or
- If they have made a lawful arrest.
Searching Your Car Without Your Consent
- You do NOT have to give consent to a law enforcement officer to search
your vehicle. But bear in mind that the expectation
of privacy in a car is less than the expectation of privacy
in your home.
- With probable cause, law enforcement officers may search any area
of the vehicle where the probable cause leads him/her to believe that
evidence may be found. In addition to a probable cause search, any time
a law enforcement officer sees evidence of a crime in his/her "plain
view" he/she can immediately seize the evidence without
a warrant. However, the search should not extend to a locked trunk as
there is no exigency
regarding the contents of the trunk. With probable cause, the officer
could detain the vehicle and seek a warrant to search the locked trunk.
- Law enforcement officers are permitted to conduct a warrantless search
of a car if the officer has probable cause. As an example, when a police
officer pulls over a vehicle exiting a concert and claims to smell marijuana,
the officer has unilaterally created probable cause to search the vehicle.
If the officer finds marijuana, the allegation of smelling marijuana
will be substantiated. If no marijuana is found, there will be no arrest
and the individuals will be allowed to leave.
As a further example, when a gun is found in a vehicle, regardless of
where it is found, it is quite possible that the police officer will testify
that the gun was in plain view when the vehicle was approached and, therefore,
there was probable cause to search the vehicle.
Keep in mind, if you feel that you have nothing to hide, and that challenging
the police officer would be more bother than it's worth, you can give
police officers consent to search your vehicle. With consent, the police
officer does not need a warrant, does not need probable cause and can
take custody of any evidence obtained.
Searching a Passenger in a Car That Has Been Stopped
Generally, a police officer cannot search you if you are a passenger
in a car stopped for a moving violation. However,
- If the officer has an articulable suspicion that the passenger
may be involved in criminal activity, the passenger may be searched.
For example, when approaching the car, if the officer notices the passenger
bend over and hide something under the seat or if there is a strong
odor of marijuana emanating from the vehicle, the passenger may be searched.
- Whether or not the passenger (or driver) has actually done
anything to create an articulable suspicion that a crime has been committed
is usually a hotly contested issue. It is possible that the police officer
will stop and search first and, if he finds a reason to make an arrest,
create an articulable suspicion after the fact. In the prior example,
the police officer's allegation of smelling the odor of marijuana may
create sufficient probable cause to search a vehicle. However, the expectation
of privacy on your person is greater and therefore, a police officer
should not be able to use that argument to raise sufficient probable
cause to search a passenger. With that said, it is extremely difficult
in such a situation to assert your rights and convince a police officer
that such a search would violate the Fourth Amendment to the United
If You are Served With a Search Warrant
If the Police have a warrant to search your home, they cannot necessarily
look anywhere they want. You should:
- Read the warrant carefully to see where the Judge (the person who
signed the warrant) is permitting the police to search and what they
are permitted to seek. For example, if the warrant says the police are
permitted to search your home for anti-assault weapons, they cannot
open your ring box in the back of your sock drawer. The phrase used
to explain this general rule is: the police cannot look for an elephant
in a matchbox. However, most search warrants are so broadly written
that the police can usually get away with looking just about anywhere.
- Sit there quietly and observe the search.
- Keep control of your emotions and actions and do not get angry with
the officers conducting the search.
- Contact an attorney who can attempt to speak with the officer while
they are still at your home.
- Remember that the police officers that are in your home pursuant
to a warrant can make the search clean or messy. Offering the officers
coffee, water or soda is an easy way to make the situation more comfortable
and perhaps ingratiate yourself with the officers so that they undertake
a clean search and leave your home in good order.
If Your Vehicle is Seized
If you are stopped in your vehicle for committing a crime, the Police
may seize your car and refuse to return it. In New York City, the NYPD
has recently taken an aggressive approach to seizing property used to
commit a crime. The crimes usually involved are:
- Drunk driving
- Buying or selling narcotics
- Solicitation of a prostitute
The Property Clerk's Office of the NYPD will usually serve you with a
lawsuit that can result in losing your rights of ownership of the seized
How to Get Your Car Back
You can get your vehicle back, but it is going to cost time, aggravation
and money. Ordinarily, a settlement of the seizure proceeding can be negotiated
whereby you pay a percentage of the fair market value of the vehicle as
a fine and the NYPD will drop the forfeiture proceeding and return the