Category Archives: Police Search

First, What gives the police the legal right to pull you over?

PROBABLE CAUSE

The Fourth Amendment to the United States and New York State Constitution prohibits the government from unreasonable searches and seizures. Generally,  police cannot search your car without a warrant, without your consent or absent situations that create the automobile exception to the warrant requirement. If they do search your car without anyone or more of the aforementioned situations stated above, they are violating your constitutional rights.

Police have the legal right to pull you over whenever they have probable cause to believe that you violated the Vehicle and Traffic Law (VTL).   “What is the definition of probable cause?” you ask

Probable cause is defined as follows:

“reasonable cause to believe that a person has committed an offense exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment, and experience that it is reasonably likely that such offense was committed and that such person committed it.”  CPL s. 70.10(2).  See also People v. Russell (2005), CPL s. 140.10.

In other words, if police see you commit any traffic infraction under the VTL (e.g., failure to use turning signal), then they have established probable cause necessary under the law to pull you over.

REASONABLE SUSPICION

In addition, police can stop your car if they have reasonable suspicion of criminal activity by you or others in the car (i.e., committing a misdemeanor or felony). Reasonable suspicion is: “the quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under the circumstances to believe that criminal activity is at hand.” People v. Cantor (1975). Thus, to establish reasonable suspicion, police just need to say that they saw you or a passenger in your car committing a crime.

As you can see, it is relatively easy for police to legally stop you while you’re driving a car in the State of New York.

So let’s say you were legally pulled over. Can police officers search your car?

PROBABLE CAUSE

Getting back to the core subject matter of this topic, let’s discuss when or if police officers have the legal right to search your car after they pulled you over. First and foremost, keep in mind that police can always ask you for your consent allowing them to search your car. In fact, often times that is what they do! Obviously they will not ask you “do you give us consent to search your car?” They will ask you to step out of the car or to open your trunk. If you fail to say that you “refuse” or that you do not consent to the search, you have given them consent. However, if you do not consent, they must end their probe. If they search your car anyway, they are committing an illegal search under the Fourth Amendment. In that case, evidence seized may be suppressed and cannot be used against you in the court of law.

Aside from consent, police can have other legal rights to search your car. At the time of the stop, if police have probable cause to believe that the vehicle contains fruits of the crime or contraband, they can search the car without obtaining a warrant. This search arising from probable cause is known as the automobile exception to the Fourth Amendment warrant requirement. So, let’s say you were pulled over for failing to use a turning signal and officers smell the scent of marijuana coming from your car at the time of the stop, they have probable cause to search your car for more marijuana. “What about the trunk?” you may ask. This includes the search of your trunk because it is reasonable to assume that marijuana can fit into and be kept in the trunk.

SEARCH INCIDENT TO AN ARREST

Police can also search the car incident to your arrest. This is another exception to the warrant requirement known as a search incident to an arrest. KEEP IN MIND that the law pertaining to the search incident to an arrest is different from the law in situations where probable cause exists. So let’s say you were pulled over for a simple traffic violation – which gives no probable cause to search for weapons, drugs or other evidence of a crime inside of the vehicle – and your driver’s license turns out to be suspended or revoked, you will be arrested, invoking the limited right to search incident to your arrest. At the time of your arrest, police may search the interior of your vehicle incident to your arrest if you, the arrestee, is still inside the car, unsecured and may gain access to the interior of the vehicle. This includes the search of closed containers (e.g., purses, backpacks, etc.) in your vehicle if police believe that you are armed, posing a danger to them or to the public and/or attempting to destroy evidence. But, once you exit your car, officers cannot search any containers in your car to search for weapons or other evidence of crime because you no longer pose a threat of reaching for weapons or destroying evidence.

The search incident to an arrest is limited to your wingspan, which includes your clothing and anywhere in the car where you are able to reach. Keep in mind that an arrest may be custodial. In other words, you do not have to be handcuffed to be arrested. Once you are detained and have no right to leave, you are under custodial arrest. Unlike many other jurisdictions, New York does not give officers the right to search the trunk or any containers (e.g., purses, backpacks, etc.) incident to an arrest UNLESS they have reasonable suspicion of illegality such that you are armed, posing a threat of danger to them or to the public and/or attempting to destroy evidence.

Let’s say you are arrested for driving while intoxicated (DWI) and indicate no threat of danger to the officers. As they arrest you, officers find a pack of cigarettes in your wingspan (can be in your pocket or in the cup holder) and begin to go through your cigarette pack and find crack. Legally, the evidence of the crack cannot be used against you in the court of law because the search of the “container” in this case is unlawful. A DWI arrest without  reasonable suspicion that you are armed, posing a threat of danger to them or to the public and/or attempting to destroy evidence does not give New York police the right to illegally search any closed containers in your wingspan at the time of your arrest.

REMEMBER that in order for police to conduct this type of search legally, the arrest must be lawful, the search must be justifiable such that it is conducted for preservation of evidence and safety of the police officers and public, and the search must be limited in geographic scope such that police officers only search your wingspan. Remember, in NYC officers cannot search containers in your wingspan unless they reasonably suspect that you are armed, posing a threat of danger to them or to the public and/or attempting to destroy evidence.

The Fourth Amendment is largely implicated during automobile stops. The law on this issue is very complicated and in a constant flux. If you or someone you know has been arrested after being pulled over by the police, hire an experienced criminal defense attorney to challenge the stop and search, and any evidence that may have been obtained during the stop. If your vehicle was unlawfully stopped or unlawfully searched, a criminal defense lawyer could prevent the prosecutor from using any evidence obtained from that search against you in the court of law.

If you believe your constitutional rights have been violated, contact the Ilganayev Law Firm now for a free consultation.

ATTORNEY ADVERTISING. This blog post does not constitute legal advice. Prior Results Do Not Guarantee Similar Outcome.