Here is a common scenario. You are pulled over for a traffic violation. The police start to ask some questions, and before you know it they are asking if you have any drugs or weapons in the car. They start to say things like “if you don’t give us permission to search we will make this hard on you” or “we will get the dogs”, etc.
Maybe you give them permission or maybe you don’t. Regardless, the search your car or you without a search warrant and eventually find something. Maybe it’s some drugs or maybe it’s a weapon, and you get arrested and charged with a serious criminal charge.
As you think back to the incident, you start to ask yourself, “Don’t police need a search warrant to search in my car, or look in my pocket?”
Well, let me start by saying that the general rule is that a warrant is required to search a person or their property unless one of the exceptions to the warrant requirement apply.
There are many exceptions to the warrant requirement, not as many with the home as there is with the auto or person. Nonetheless, the general rule is that a warrant is required.
Yet, police frequently step over the line and violate citizens’ constitutional rights by searching them, their homes, or their cars illegally. An article of this nature could not begin to adequately explain the search and seizure law because there is so much of it and it is all applied fact specifically. A consultation with a lawyer is the right venue for a more complete legal explanation.
However, with anything in life, one must look to what is reasonable and what is not, and search warrant (or lack thereof) analysis is practical in that sense. I often ask myself “self, why was it impractical for the police to get the warrant, and what was the exigency or emergency that prevented the police from obtaining a warrant from the judge.
Many times, people elect not to argue a motion to suppress evidence because they fear that the will feel the full brunt of all the charged offenses if they lose. This is certainly a concern. However, in my opinion, it is advisable to file the motion, and put the state on notice that there are issues with the way the evidence was obtained. You may decide at a later date that you do not want to go forward with the motion and accept a good plea deal. However, in my opinion, it gives me as a lawyer leverage to negotiate because the State knows the possibility of a dismissal exist if the defendant has a shot to win a suppression motion.
I am not saying that every case presents search and seizure issues, but I feel that the majority of cases where evidence was obtained without a warrant present problems for the prosecutor.
Give us a call if you have a case you would like to discuss your case.