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Stops, Searches and Seizures

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
Vehicle Seizures
How to Get Your Car Back

Your Rights When Stopped and Questioned by a Police Officer

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, you should:

  • 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 officers.

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 the conversation.

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 States Constitution.

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 vehicle.

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 vehicle.