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Illegal Search? Probable Cause and Drivers Rights

June 30th, 2005

By Vince Imhoff, Esq. & Dan Rhoads

Anyone who has been pulled over while driving can relate to the sinking feeling that strikes once the multicolor police lights ricochet off the rear-view mirrors and into the drivers sight. Once the cars are parked on the side of the road, the officer confidently strides toward the car and requests paperwork. Then, nonchalantly, he springs the question: Can I search your car?

In most cases, the request seems harmless. But in some instances, an individual might be embarrassed to let an officer search his car. The potential shame can come from any number of materials, including intimate items, medical treatments, and LA Clippers memorabilia.

Many citizens are unsure about whether or not they must consent to a search of their vehicles.

Probable Cause

The Fourth Amendment of the Constitution guarantees the right of the people to be secure in their persons . . . and effects against unreasonable searches and seizures. In order for a search to be reasonable in the absence of consent, the officer must have probable cause to believe that a crime has been, is being, or will be committed.

Drivers should be familiar with two important probable-cause rules. The first is the plain-sight rule, which says that anything in the cars cabin that the officer can plainly see from outside is fair game. The second is the furtive-gesture rule, which means that an officers observance of actions inside the car that can be reasonably perceived as attempts to destroy or remove evidence gives the officer permission to search.

Another common source of probable cause is odor. If an officer smells alcohol or marijuana smoke, he will probably question the driver about it. This line of questioning often results in field sobriety tests.

Federal and state Supreme Court opinions from 2005 explore the boundaries of probable cause and police searches.

Without Probable Cause

In Illinois v. Caballes, 125 S. Ct. 834 (2005), a state trooper stopped the defendant for speeding. While the first officer wrote a warning ticket to the driver, who was sitting in the police car, another agent walked his canine around the defendants car. The canine alerted at the trunk of the car, and the officers searched it. Finding marijuana, the troopers arrested the defendant. Id.

The seized evidence was allowed at trial; and the defendant was convicted, sentenced, and fined. The Illinois Supreme Court reversed; but in a 6-2 opinion, the United States Supreme Court reinstated the conviction. Id.

The holding in Caballes was: A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment. Caballes, __ U.S. at __. What this holding means is that an officer does not need probable cause to use a canine to detect contraband inside a vehicle as long as the detection occurs while the driver is being detained for a lawful purpose. However, the Court warned, A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission. Id.

Limits on Caballes

An Arkansas Supreme Court opinion in the wake of Caballes highlights the limitations that the Supreme Court upheld with respect to illegal searches.

In Lilley v. Arkansas, 2005 WL 1244872 (Ark. 2005), a police officer stopped the defendant after observing his car as it swerved off and back onto the highway three times. Although the officer noticed a strong scent of air freshener in the car, he decided only to write the driver a warning because it was raining. Id. While Lilley sat in the patrol car, the officer filled out the paperwork and ran the usual checks on the vehicle and its driver. The checks raised no warnings about Lilley, but his answers to the officers questions did.

The officer became suspicious when he asked about Lilleys travels. Other than the drivers growing nervousness, the most quizzical fact was that the car was a one-way rental from California to Virginia and was rented in another persons name. Even though the driver refused consent to a search, the police officer decided to walk his canine around the car. The canine alerted to the trunk, in which the officer found three duffel bags carrying marijuana.

Lilley was convicted at trial, but the Arkansas Supreme Court eventually reversed the conviction.

The Arkansas court held that the combination of the one-way rental in a third-partys name, the drivers nervousness, and the scent of a masking odor did not give Officer Bowman reasonable suspicion to detain Lilley further for a canine sniff of his car after the traffic stop was concluded. Id. The court reasoned that it is impossible for a combination of wholly innocent factors to combine into a suspicious conglomeration unless there are concrete reasons for such an interpretation. Id. (quoting U.S. v. Beck, 140 F.3d 1129, 1137 (8th Cir. 1998)).

The Lilley court was quick to distinguish its case from Caballes. It noted that sniffing by a drug dog is permissible where the sniff was conducted during the lawful traffic stop which was not extended beyond the time necessary to complete the criminal history check and issue the warning ticket. Lilley, 2005 WL 1244872, n.2. Because the officers stop was rendered complete when he handed Lilley back his paperwork and the dog run was conducted after the legitimate purpose of the traffic stop had been completed, Id., the seized evidence was the product of an illegal search.

Dealing with the Police

The best way to deal with police is to know your rights while remaining polite and respectful. Refusing consent to a search of your vehicle is your right. The police must have probable cause to believe that you are involved in a crime before they search without your consent. The police may detain you only for the period of time that it takes them to complete whatever paperwork or background checks they are lawfully doing. Once the administrative work is finished, you are free to leave unless the police officer places you under arrest for committing a specific crime.

Remember to be courteous and cooperative. Misbehavior will only make the police more aggressive; and if you act egregiously enough, your actions can constitute probable cause. The other thing you should almost never do is to admit to breaking the law.

An experienced defense attorney can investigate a traffic stop to make sure that every aspect of it was permissible. A lawyer can advise you of remedies in the unfortunate event that the police have violated your rights. If the police have performed an illegal search, an attorney must work to ensure that the evidence they collected be excluded if the case goes to trial.

Vince Imhoff is the Managing Partner of Imhoff & Associates, P.C., Criminal Defense Attorneys. Originally from Chicago, he is admitted to practice law in Illinois, California and Pennsylvania. He obtained his Bachelors degree in Political Science from Lewis University, and earned his law degree from Illinois Institute of Technology/Chicago-Kent College of Law in 1989. From 2000 through 2002, Mr. Vince Imhoff was the Assistant Coach for the trial team at Loyola University School of Law.

With articles published in the LA Daily Journal, Mr. Vince Imhoff is currently a member of the State Bar of California, the California Attorneys for Criminal Justice (CACJ), State Bar of Illinois, and the National Association of Criminal Defense Lawyers (NACDL).


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