SEARCH AND SEIZURE AND VIRGINIA LAW

POSTED BY CGDORSK ON SEP 27, 2017

A car is not a home and thus is not treated the same under the protections afforded by the 4th Amendment. The requirement for a warrant applies differently to a home than it does to a car because of a vehicle’s ease of mobility among other reasons. Additionally, the highly regulated nature of operating a vehicle tends to lessen the assumption of privacy for vehicle operators. Therefore do not operate or ride in a vehicle when it contains things which are illegal under federal or state law, as the contents of the vehicle may be searched without your permission under certain circumstances. In addition, be careful when transporting a firearm in a vehicle as the laws can be technical and it is illegal to have a “concealed" firearm without a permit. 

WHEN CAN POLICE SEARCH MY VEHICLE?

Police will search your vehicle when they believe they have probable cause. Police may search the area of the vehicle which they have probable cause to believe contains contraband or other evidence of a crime.  In many instances the police will claim that they smelled marijuana inside the vehicle and that probable cause exists in order to search that area and anything in it, sometimes this includes closed containers, purses, backpacks or other personal item.

In the Supreme Court case, California v. Acevedo, the court said, “While a police officer who has probable cause to believe a paper bag deposited in the trunk of a car contains marijuana may conduct a warrantless search of the trunk and the paper bag, the officer cannot then conduct a warrantless search of the passenger compartment of the car, unless he also has probable cause to believe the passenger compartment contains contraband.” The 4th Circuit Court made the distinction this way. “Probable cause must be applied to specific compartments and containers within an automobile” (United States v. Carter). In other words, a warrantless search is allowed only in the precise vicinity of the vehicle that is under suspicion.

The best way to understand search law is to distinguish each area of the car as a separate area for search purposes. With that in mind, an officer must decide if probable cause applies before conducting a search of the area. In the state of Virginia, probable cause does not automatically apply to the entire car.

CAN THEY ALSO SEARCH MY TRUNK?

Evidence of a crime is often found in a car’s trunk.  Only evidence obtained properly under 4th amendment law is permissible in court. Before evidence found in the trunk can be admitted in court, the officer must establish that there was probable cause to search the trunk. (This topic applies only to evidence obtained prior to the suspect’s arrest. The search of vehicles after an arrest is explained in a later paragraph.)

If an officer has probable cause to believe that evidence of a crime is to be found inside the vehicle’s trunk, then the trunk may legally searched. According to United States v. Lynn, police who smelled a strong chemical odor coming from the trunk of a car after properly finding drugs inside the vehicle’s passenger compartment did indeed have probable cause to search the trunk for chemical contraband.

In Virginia, there is no clear ruling regarding the search of trunks. However, probable cause to search the inside of a car does not generally extend to the trunk. This may change if police find something in the car’s interior that would give them probable cause for an additional search of the trunk. For example, officers who smell marijuana inside a vehicle have probable cause to search the vehicle’s passenger compartment. If no evidence is found during that search, they are not allowed to then search the trunk. In this case, a search of the trunk would not be allowed because there is no probable cause to search it.

 

SEARCH OF VEHICLE AFTER MY ARREST?

According to the Supreme Court case of Arizona v. Gant, police officers are legally allowed to search a vehicle after an arrest has been made if they have

• Reasonable belief that the car contains evidence of the crime that was the cause for the arrest
• Reasonable belief to assume that the arrestee may regain access to the vehicle after the arrest
• Probable cause to believe that there may be evidence of another crime within the vehicle

This applies only to those who were recent occupants of the vehicle in question AND if the officer has reason to believe that evidence of any crime can be found inside the car OR if the arresting officer has reason to fear for his safety. Practically speaking, if an officer stops a car for speeding and then makes an arrest for possession of marijuana, he is legally allowed to search the car for marijuana because there is reasonable suspicion that marijuana might be found in the car. 

Remember, absent probable cause to believe that there may be evidence of another crime within the vehicle, that this authorization to search the vehicle stops after the arrestee has been secured and cannot access the interior of the vehicle! Evidence found pursuant to an unlawful search is illegal. 

 

CALL TODAY FOR A FREE CONSULTATION

If you are facing a criminal charge that was a result of a police traffic stop and vehicle search, contact Dorsk Law Office, PLC immediately. It is important to remember that in Virginia – you have rights. Attorney Chad G. Dorsk has extensive trial experience and will be able to advise you of your options and craft a legal defense that will encourage the best result possible for your case. CALL TODAY FOR A FREE CONSULTATION.