Should I Submit to a Search of my Person, Vehicle, or Home?
The law governing all searches and seizures is the Fourth Amendment to the United States Constitution. It states that “the right of the people to be secure in their person, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrant shall issue, but upon a probable cause accorded by oath, or affirmation and particularly describing the place to be searched, and the person or thing to be seen.” You don’t have to consent to a search. In fact, it’s not a good idea to ever consent to a search. However, there are many situations where the police may search your person, vehicle, or home without your consent.
The Warrant Requirement
A warrant is usually required for law enforcement to conduct a search. However, there are a variety of situations where a warrant is not required. When a warrant is issued, it may only be based on probable cause.
A warrant is required before a search or seizure, unless there are exigent circumstances. An arrest warrant is not constitutionally required. Any search, whether there is a warrant or not, must not be unreasonable. A Fourth Amendment search and seizure only takes place when a person’s reasonable expectation of privacy has been violated. Nonetheless, some types of evidence are likely to be found not protected by a reasonable expectation of privacy. They are: abandoned property (e.g. trash); things that can be seen from an aerial view, or from an officer’s vantage point on public property; things that a person says or does in public; and information law enforcement learns by use of other senses while they are in a place they have a right to be.
Probable cause is required to make an arrest or conduct a search. Probable cause applies to two different situations: 1) before a judge or a magistrate may issue a warrant for an arrest or search and 2) before law enforcement can make a warrantless search or arrest. For there to be probable cause to arrest a person, it must be reasonably likely that a violation of the law has been committed and the person to be arrested committed the violation. For there to be probable cause to search a particular location, there must be likelihood that the specific items to be searched are connected to criminal activities and these items will be found in the place searched.
Exceptions To Search Warrants
The general rule is that a warrant is required for a search. However, the requirements for a search warrant may be dispensed with if some special exception applies. The most common exceptions are: search incident to a valid arrest, a search motivated by exigent circumstances, certain types of automobile searches, searches done after consent, “stop and frisk” partial searches, and certain inspections and regulatory searches.
In some, but not all, of these situations, the officer must have a probable cause to believe that a search will furnish evidence of the crime, even though they are not required to get a warrant. In others, something less than probable cause will be needed. This includes “stop and frisk” and a consent search.
Search Incident To Arrest
When an officer makes a lawful arrest, they may search the area in any arrestee’s control. Only the area that is theoretically within the defendant’s immediate control is searched incident to the arrest. There could be automobile searches incident to an arrest. In most driver arrests for traffic violations, the police aren’t entitled to search the passenger compartment incident to an arrest. The basic rule on automobile searches incident to an arrest is that a warrantless search incident to an arrest must be limited in the areas within the arrestee’s immediate control. If the officer reasonably believes that the passenger compartment might contain evidence of the offense for which the arrest is being made, they may search that compartment. This rationale would almost never apply to a traffic arrest, but will often apply to arrests for drug offenses. This is a very low standard.
If the officer reasonably concludes that the driver may be dangerous and might gain access to a weapon in their car once they’ve returned to the car post-investigation, under a form of stop and frisk, the officer may conduct a brief protective search of the passenger compartment for weapons. When law enforcement properly stops a car, whether they arrest the driver or not, if they have probable cause to believe that the vehicle contains contraband, or evidence of crimes, they may search any part of the vehicle where the evidence might plausibly be found. For example, if the officers are looking for something big like a rifle, they can’t search small containers where they think drugs might be. However, if they think that the contraband is drugs, which of course may be small, then they can look in anything that might contain that evidence of that illegal activity. For the search incident to an arrest option to apply, the arrest must be a custodial one, which means that the officer must be planning to take the defendant to the station for booking.
There may be exigent circumstances that justify dispensing with the warrant requirements. The most common are: preventing the imminent destruction of evidence, preventing harm to a person, and hot pursuit of a suspect.
The “Plain View” Doctrine
In general, law enforcement does not commit a Fourth Amendment search when an officer sees an object that is in plain view and the officer has the right to be in the position to have that view. When an officer is using an aircraft to view a property, anything they see with the naked eye falls into the plain view doctrine as long as the aircraft is in public navigable airspace. The plain view doctrine also applies to senses other than sight, such as touch, hearing, or smell. This is how officers are able to stop and frisk alleged suspects. If an officer is conducting a legal pat down under stop and frisk, and he or she touches something that feels like contraband, the officer may seize it that under the plain touch analog to the plain view doctrine. The plain touch doctrine only applies if the officer has the right to do the touching in the first place.
The plain view doctrine allows officers who are on premises for lawful purposes to make a warrantless seizure of evidence that they may come across. For this doctrine to apply, three requirements must be met: the officer must not have violated the Fourth Amendment in arriving at the place from which the item is plainly viewed; the incriminating nature of the items must be immediately apparent; and the officers must have a lawful right of access to the object itself.
All the general exceptions also apply to automobiles. With automobiles however, it is easier for law enforcement to search them due to the automobile exceptions. The two major exceptions specific to automobiles are 1) the vehicle may be searched at the station house without a warrant when the driver is arrested (inventory exception) and 2) the vehicle may be subjected to a full warrantless search in the field if the police reasonably believe that a vehicle is carrying contraband.
When a driver is stopped and an officer wants to search the vehicle on the scene, they’ll normally need probable cause to conduct a search. If an officer finds evidence in plain view of a vehicle as they are impounding it, they may seize the evidence even though they may not have previously had probable cause to search or seize. If the vehicle has been impounded by the police pursuant to standardized procedures, law enforcement may conduct a search at the station even though they don’t have probable cause. This is the “inventory search.” With an inventory search, law enforcement must follow standardized procedures and must not be acting in bad faith or for the sole purpose of investigation.
The inventory search is just a ruse to allow officers to search the vehicle of anybody who is arrested. So long as someone is arrested, an officer can search every inch of the vehicle. The official reason is to make sure that every item in the vehicle is accounted for, but it’s really an excuse to let the officers search every nook and cranny of a vehicle.
The exception allowing law enforcement to search a vehicle because they reasonably believe that it has contraband commonly applies to drugs. The typical scenario occurs when an officer walks up to a vehicle and smells an odor of marijuana. The officer then has probable cause to search the vehicle. The bottom line is that if you don’t want an officer searching your vehicle, then you should neither smoke pot in it nor carry around pot in it. Any smell of marijuana will result in a search of your vehicle in Oklahoma.
An officer may search a passenger only if the officer has probable cause to believe that the passenger possesses evidence of a crime or the officer has probable cause to arrest the passenger. The officer has several other rights regarding passengers. As a method of protecting the officer, the officer may demand the passenger step out of the vehicle. Many people don’t think they have to exit the vehicle when the officer asks them to. However, in the vast majority of situations, the officer is well within his or her rights to demand someone exit the vehicle because the officer can always say that it’s for officer safety. In addition, an officer may have a fear that the passenger is armed and dangerous. As a matter of protection, the officer may frisk and pat down the passenger to make sure that the passenger is not carrying any weapons. If the officer has the right to search a vehicle, the officer may also search any container in a car that may contain the object that he is looking for—even if the officer knows that the container belongs to a passenger. The officer can do this even if they have no probable cause to believe that the container contains that object!
Law enforcement may make a warrantless search if they receive the consent of the individual whose premises, effects, or persons are to be searched. It boggles my mind that people who know they have drugs in their vehicle or on their person consent to a search. This happens all the time. I don’t think you should consent to a search—even if you don’t think you have drugs on you or in the vehicle. I’ve seen situations where people didn’t think they had drugs on them, however, officer finds drugs. Now they are charged with a crime.
Stop And Frisk
If an officer observes unusual conduct that leads the officer to reasonably conclude that criminal activity is afoot, the officer may briefly detain the suspect in order to make inquiries. Probable cause is not required. The officer needs only reasonable suspicion based on objective facts that the individual is involved in criminal activity. After the stop, the officer may conduct a limited search of the outer clothing of the suspect in an attempt to discover weapons.
The stop and frisk doctrine also allows an officer to stop a vehicle. The typical scenario is someone being pulled over for traffic infraction. Once the officer conducts a justified stop, the officer may require the driver and the passengers to get out of the car as a legitimate safety measure. Law enforcement is entitled to do a pat down of any passenger whom they have reasonable suspicion to believe are armed and dangerous.
Vague suspicion is not enough. The officer may stop a suspect only if he or she has reasonable suspicion based on objective facts that the suspect is involved in criminal activity. An officer cannot go on hunches. Only reasonable suspicion is required for a stop. Probable cause is required for an arrest. When law enforcement officers perform a frisk after making a stop, the frisk must be limited to a search for weapons or other sources of danger. The frisk may not be to search for contraband or incriminating evidence. However, the police may lawfully discover drugs or other contraband under the plain touch analogue to the plain view exception.
Sources: Terry v. Ohio, Katz v. U.S. Florida v. Riley, U.S. v. Watson, Atwater v. Lago Vista, Arizona v. Gant, U.S. v. Robinson, Rawlings v. Kentucky, Chambers v. Maroney, U.S. v. Ross, Calif. V. Carney, Wyoming v. Houghton, California v. Acevedo, Colorado v. Bertine, South Dakota v. Opperman, Brown v. Texas, Adams v. Williams, Pennsylvania v. Mimms, & Maryland v. Wilson
Can a Passenger be Charged if Drugs are Discovered in the Vehicle?
The important principle that applies to vehicle passengers is the concept of constructive possession. There are three different types of possession: actual possession, constructive possession, and joint possession. OUJI-CR 6-11 defines these types of possession.
Actual possession is the easiest to understand. This is where you have physical possession of the drugs somewhere on your person. For example, you have actual possession of drugs when the baggie is in your pocket.
Constructive possession is the most difficult concept to understand because the drugs are not on the defendant’s person. For example, you have drugs in a glove compartment; they are not on your person. You know they’re there and can control the disposition of them. Therefore, you have constructive possession of those drugs. Someone who has constructive possession of drugs is just as guilty as someone with actual possession.
Possession is joint if two or more people share actual or constructive possession of a thing. A person may be deemed to be in joint possession of drugs that are in the physical custody of an associate if that person willfully and knowingly shares with that other person the right to control the disposition or use of the drugs.
For example, a passenger may have joint possession of drugs in the driver’s pocket if the passenger willfully and knowingly shared the right to control the disposition or use of those drugs.
Proximity Not Enough
A key principle to remember is that mere proximity to a substance is insufficient to prove possession. In order to prove constructive possession, an individual must have had knowledge of the items present and the power and the intent to control their disposition or use. Proof that the accused was at a place where drugs were being used or possessed is in and of itself insufficient to justify the finding of possession. There must be additional evidence of knowledge and control.
Motor Vehicle Issues
With respect to being a passenger in a motor vehicle that is not yours, you might receive a drug-related charge if the drugs are found in the car. Whether you’re charged depends on a lot of factors. Where exactly were the drugs found? Were they closer to you or the other individual(s) in the vehicle? Were they in a container that only somebody else had access to (e.g. a locked glove box that only the driver had the keys to)? These are all things that an attorney is going to look for. It’s important to build a case that not only did you not have actual possession but you had neither constructive nor joint possession of the drug.
Source: OUJI-CR 6-11
Should I Work as an Informant With the Police on a Drug Case?
There are some benefits to working as an informant with law enforcement. There are also major drawbacks. The biggest benefit of working as an informant is that it can improve the plea recommendation in your criminal case. Typically, people who become informants are people who were arrested and the police try to get that person to roll on others. The typical scenario with drugs is that somebody was arrested for drug possession. The police want to know who their dealer is so the police can set up a controlled buy with that dealer. Charges against an informant can go completely away, get reduced, or be modified. This all depends on the original charge and the help given to police.
There are also drawbacks to becoming an informant. The first is that you could be putting your life in danger. The people you would be informing on are probably not going to be happy that you are working with the police. They are probably dangerous people and/or have connections to dangerous people. Therefore, there are many things to take into consideration when deciding to become a confidential informant.
You can receive a good deal with your case, however, that won’t mean anything if you are not around to appreciate it. If police approach you for information on criminal activity, then you should tell your attorney immediately. It will be very beneficial to have an attorney to make sure that your rights are protected. An attorney can make sure that the police keep up their end of the bargain, make sure your identity is protected, protect you from incriminating yourself in additional crimes, and help you get meaningful results. Your attorney should get the deal in writing and be present any time you talk with the police. The bottom line is that if you choose to help the police, then make sure they don’t hang you out to dry.
Current as of April 1, 2020. Laws are subject to change at any time! Go to the sources cited above for the most up-to-date law.