Articles Posted in Vehicle Search and Seizure

Today marks the 41st anniversary of the landmark decision of South Dakota v. Opperman[1][2] in which the Supreme Court laid out the basis for what would be known as the Inventory search exception to the warrant requirement of the fourth amendment. This decision has allowed for a dramatic expansion in the number of warrantless searches the State can conduct.

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The Case

The case that made up the basis of Opperman was surprisingly mundane, and yet indicative of the kind of cases that would be affected by this landmark ruling. In the early morning hours of December 10th, 1973, Mr. Opperman’s car was found illegally parked in downtown Vermillion, South Dakota. Pursuant to police procedures, the officers impounded the vehicle. However, as the officers impounded the car, they noticed a number of valuable items strewn about the interior of the vehicle. The officers, fearing that the items could be stolen opened the vehicle and inventoried the items inside of it. While searching the interior of the vehicle, the officers found a small amount of marijuana located in the glovebox. When Mr. Opperman came to the police station to retrieve his vehicle the following day, he was arrested on the spot for possession of marijuana.

iStock_000020746027_ExtraSmall.jpgIn December of 2013, a 54-year-old Texas woman was traveling back from spending the Christmas holiday with a family friend in Ciudad Juarez, Mexico when she was stopped by federal agents at the Cordova Bridge border crossing in El Paso, Texas. As the unnamed woman was passing through the checkpoint, a police drug dog allegedly alerted on her, prompting U.S. Customs and Border Protection agents to select her for additional screening. The woman was quickly stripped searched and forced to undergo several body cavity searches at the crossing checkpoint, but the agents failed to turn up absolutely any evidence of drugs.

Regardless of this fact, the agents were determined to find some evidence of drugs and proceeded to transport the woman, handcuffed and against her will, to the University Medical Center of El Paso. At the hospital, doctors subjected the woman to an observed bowel movement, an expensive total body CT scan and numerous body cavity probes in a desperate attempt to find some trace of drugs. However, after enduring over six hours of demeaning and highly invasive searches, the agents were forced to admit the woman had committed no crime and released her with no charges. However, to add insult to injury, the woman soon received a $5,000 bill from the hospital for the exams she was wrongly forced to undergo.

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iStock_000020746027_ExtraSmall.jpgA common problem we hear during consultations is that once a police officer stops and questions a client while driving, he or she does not know how to respond to the officer. Usually the police will ask them a question, then add, “Don’t lie to me. If you lie to me you will face more charges.” While this may be a scary police tactic, the police officer is telling the truth in this regard. Lying to a police officer could be a crime and the officer may detain and charge you for it. Instead of lying, the better approach is to tell the officer that you do not wish to answer any questions and that you would like to leave.

When a police officer stops and questions you while you are in a vehicle, remember “RID” (Registration, Insurance Card and Driver’s license), If the questions he asks you are found on the three documents you are required to provide to the police when you are stopped, “RID” (Registration, Insurance Card and Driver’s license), then answer the officer’s question. If the information is not contained on one of these three sources, then politely refuse and ask if you are free to leave. There is only one exception to this rule, which is that you must voluntarily tell an officer that you have a concealed handgun license/gun.

Often times, Police Officers do not stop there. Some may respect your requests, others will continue to ask you questions. They are aware that you are in the presence of an authority figure, which presents a significant and unique type of psychological presence. It is natural to feel the need to respond in this type of environment. This desire and urge is present even if the answer will hurt the person answering the question. A police officer creates a stressful environment that compels you to answer questions, especially when he is in full uniform, armed with a gun and other equipment on his person, when you cannot move because you have been pulled over by a police car, and his police lights are right behind you.

Surviving a police encounter and coming out of it without a criminal record is simple as long as you politely refuse to answer any of his questions. This assumes that you do not have a warrant for your arrest and that you are not committing a crime in plain view. With this aside, remember the “RID,” (Registration, Insurance Card and Driver’s license) if you answer any other questions you could give the officer a basis to search your vehicle or even arrest you. It is more prudent to stop the questioning before it even starts; it is much more difficult to stop a conversation in the middle than in the beginning.

“RID” (Registration, Insurance Card and Driver’s license) are all the law requires you to give to a police officer. Consider it like this… If an officer comes to your car window after stopping you and asks, “Is this your car?” You are safe to say “yes” or “no, it’s my friends, I’m borrowing it.” Both of those answers can be found on the vehicle registration card. If the officer says, “What’s your address?” Give it to him. Even if your current address is not on your driver’s license, your address is listed on your driver’s license. If the officer then asks, “Where are you coming from?” Here it is perfectly acceptable for you to say, “Officer, I don’t want to answer any questions. Am I free to go?” If the information the officer is asking you is not contained on any of the three documents – “RID” (Registration, Insurance Card and Driver’s license) he has asked for. Be polite, but don’t provide him the information he is seeking. Providing him with the information found on these three documents may be the difference between continuing your day normally or sitting in the back of a police car. So remember the “RID” (Registration, Insurance Card and Driver’s license) and you will stand a better chance when a police officer stops you.
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iStock_000020753176_ExtraSmall.jpgIt’s a familiar scene on the side of Texas highways: a car has been pulled over by law enforcement and officers are searching the vehicle while the driver is asked to stand a short distance away. Once law enforcement has either acquired a valid search warrant or established that one of the three exceptions to the search warrant requirement applies (as discussed in Part I of this post), the officer is allowed to search any area of the vehicle or any container within the vehicle in which the contraband he is looking for could reasonably fit. For example, if the officer has probable cause to believe that there is marijuana in a vehicle because he smells the scent of marijuana, he may look in any part of the vehicle or any container within the vehicle that is large enough to fit marijuana inside. “Containers” in this context can include the driver and passenger’s personal belongings, such as a purse or backpack. Because of the potentially small size of much contraband, this means that an officer could be permitted to search virtually every area of a vehicle or every container in a vehicle. In contrast, if the officer has probable cause to believe that there is a larger item such as an illegal assault rifle in the vehicle, he would not be permitted to search in an area as small as the glove compartment as there is no conceivable way an assault rifle could be concealed there. A common misconception in vehicle searches is that a locked compartment is enough to require law enforcement to obtain a search warrant–this is often not true. An officer with probable cause may simply use the vehicle’s key to unlock one of these areas, and may even be permitted to break into them in certain situations.

An important warrantless search that many drivers are unaware of are inventory searches, which are completed after a driver has been arrested and his vehicle impounded. During an inventory search, an officer will go through the vehicle and make a list of all of the items inside, which will then be kept on file with the police department. Inventory searches are designed to ensure that all of an arrested owner’s property is kept safe during the vehicle’s impoundment while protecting the police department from false claims of theft. (Moberg v. State, 810 S.W.2d 190, 193 (Tex. Crim. App. 1991). While taking an inventory, officers may look in all areas of the vehicle, including locked compartments and closed containers, as long as they are following the specific policy of their police department.

Lastly, every driver should be aware that under civil forfeiture, government officials could seize vehicles, cash or other valuables containing or found in the presence of contraband and then file a civil lawsuit for ownership of those items. In some situations, items may be seized and forfeited even after the owner was not convicted in his criminal trial.
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iStock_000020746027_ExtraSmall.jpgOne of the questions I am asked most often is “What rights do I have when I am stopped by a police officer and he would like to search me or my car?”
And with recent controversy surrounding Texas law enforcement performing roadside cavity searches on the mere suspicion of marijuana, being aware of your rights and proper search parameters is more important than ever.

Few public policies pose as great a threat to our fundamental civil liberties as the war on drugs. Since the 1970s, the U.S. judicial system has created a “drug exception” to the Constitution by permitting the erosion of our constitutional rights in the name of drug prohibition. Additionally, misguided drug policies have resulted in extensive discrimination against marijuana users and those suspected of being marijuana users.
Under Texas law, an officer may search your vehicle during a stop if they:
(1) have a valid search warrant signed by a magistrate,
(2) you consent to the vehicle search or
(3) the officer has probable cause to believe there is contraband in the vehicle.

An officer can have probable cause to search a vehicle if he can plainly see any contraband in the car (when it is in “plain view”), when the officer has received information that there is contraband in the car from a reliable informant, or if there is a smell of marijuana or other drugs coming from the vehicle. Clark v. State, 548 S.W.2d 888 (Tex.Cr.App. 1977); Harris v. State 486 S.W.2d 88 (Tex.Cr.App. 1972); Isam v. State, 582 S.W.2d 441, 444 (Tex.Cr.App. 1979). If you do choose to consent to a search of your vehicle, officers may only search the areas of the vehicle you have consented to, so be aware of your phrasing if you do not wish to consent to a full-vehicle search.

Many find speaking with a law enforcement officer to be intimidating in itself, even if they have done nothing wrong, making it even more important that you are aware of your rights before you are in this situation. It is important to remember because of the openness and mobility of cars and trucks, your expectation of privacy in a vehicle is considerably less than the amount of privacy you can expect to have in your home. Accordingly, police officers have much less restriction when searching a vehicle than searching a private home, making it very important to understand and protect your constitutional rights during warrantless searches. You have the right to NOT consent to the search and the RIGHT to NOT waive any of your rights with law enforcement.

For more on Texas Marijuana Vehicle Search and Seizure, please see Part II, where I will discuss Texas laws relating to locked compartments, closed containers and inventory searches.
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