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MARIJUANA & YOUR CAR
When Can a Police Officer Stop Your Car?
THE BEDROCK RULE is that an officer can pull over a vehicle only if he has at least a reasonable suspicion that the driver or occupant committed a crime or traffic violation. A very large proportion of marijuana arrests occur in conjunction with the suspect being stopped for a traffic violation. There are numerous court cases in which people were convicted of marijuana crimes following an officer\'s stop of their vehicle due to: double parking, expired registration tags, dirty windshield that obstructed the driver\'s view, faulty muffler, polluting car, no registration tag, headlights out broken tail light, failure to dim high beams, no brake lights, bald tires, no license plate, illegible license plate, no license plate light, speeding, driving over a double line, unsafe lane change, and weaving. If your car has any such defects, or if you violate any traffic laws, you are inviting a police officer to pull you over at any time.
Roadblocks
As just mentioned, the general rule is that an officer must have reasonable suspicion in order to legally stop a person driving a vehicle. One major exception, however, pertains to roadblocks. Currently, the most common use of roadblocks is to detect and deter people driving under the influence of alcohol or drugs. When the police properly conduct such a roadblock, they may stop vehicles without any reason to believe that the driver is under the influence. Usually they employ some system such as stopping every third car. If a vehicle is stopped at a roadblock, the stop must be very short. The officers must quickly allow the driver to pass through unless they observe facts that create a reasonable suspicion that the driver is intoxicated or otherwise violating the law. This is usually accomplished by asking the driver a question or two and judging his response. If the driver slurs his speech, or exhibits any other signs of alcohol or drug use, the officer will be provided with a reasonable suspicion sufficient to extend the driver\'s detention
And order him or her to get out and perform some field sobriety tests. If the driver fails the field sobriety tests, the officer will then have probable cause to arrest the driver for driving under the influence.
In short, a police roadblock only allows the officers to stop your vehicle. They cannot search you or your car without probable cause to believe that you are violating the law. For example, sometimes roadblock detentions are extended because an officer smells marijuana when he talks to the driver. Likewise, even at a roadblock, you retain every right to refuse to consent to an officer\'s request to search.
Ordering You Out of Your Car
If a police officer legally stops a vehicle, he has the right to order the driver out of the car. This is a routine procedure which most courts have allowed for "officer safety reasons." Upon ordering a person out, the officer may conduct a pat-search of the person’s outer clothing only if he sees a bulge or has some other reasonable basis for believing that the individual may be armed or dangerous.
When Can a Police Officer Search Your Car Without a Warrant?
There are several conditions that can grant an officer the right to search your car without a warrant. Specifically, an officer can conduct a warrant less search of your car if:
(1) The officer reasonably believes you may have a weapon in the vehicle; or
(2) The officer has probable cause to believe there is marijuana or other contraband inside the car; or
(3) The officer arrests you; or
(4) Your car has already been impounded.
Vehicle Search for Officer Safety
As noted above, if a police officer legally stops a vehicle and reasonably believes an occupant may be armed with a weapon or dangerous, the officer can order the occupant out of the car and search the passenger area of the vehicle for weapons. In one famous case, police officers on patrol late at night observed a car speeding and weaving. As they watched, the driver of the car lost control and swerved into a ditch. When the officers got to the car, the driver, Mr. Long, was already out of the car. He exhibited all the classic symptoms of intoxication. When the officers asked to see his vehicle registration, Mr. Long walked back to his car to retrieve it. At that moment, the officers saw a large hunting knife on the floor board of Mr. Lung’s car and immediately ordered him to freeze. They pat-searched Mr. Long, but found no weapons. The officers then directed their flashlights inside the car to look for any other weapons in plain view. Although they saw no weapons, they did see a large open pouch in the front seat. The pouch appeared to contain a large amount of marijuana. Based on their observations, the officers arrested Mr. Long for possession of marijuana, and after searching the car found 75 pounds.
The Court concluded that the officers acted constitutionally when they looked into Mr. Lung’s car with their flashlights. The Court explained that even when a suspect has been removed from his vehicle for questioning, the police may still conduct a "protective search" of the vehicle\'s interior. The Court reasoned that a suspect might break away and enter his vehicle, thereby obtaining a hidden weapon. In addition, the Court explained, if a suspect is not arrested following a detention, he will be allowed to return to his car and could retrieve a weapon at that time. Therefore, for "officer safety reasons," whenever a police officer reasonably believes a suspect may be dangerous, the officer can search the passenger compartment of the suspect\'s vehicle. Moreover, when such a search for weapons is conducted, the officers may seize any illegal drugs found during the search. (Michigan v. Long [1983] 463 US 1032.)
Vehicle Searches Based on Probable Cause
Although a police officer can stop your vehicle with only a reasonable suspicion of criminal activity, he cannot typically search your vehicle unless he has probable cause to believe you are or were engaged in criminal activity. In other words, if a police officer stops you for speeding, he ordinarily cannot search your car. However, if an officer stops your car, and somehow probable cause develops to believe that there is marijuana in the vehicle, the Supreme Court has held that the officer can immediately conduct a warrant less search of you and your vehicle\'s passenger compartment. The twin justifications for warrant less searches of automobiles are their mobility and the lesser expectation of privacy which an individual has in a vehicle as compared to a home. (US v. Ross [1982] 456 U.S. 798.)
Air Fresheners
Juan Garza was stopped for speeding as he drove from Texas to Chicago. While the officer and Mr. Garza chatted, the officer asked Juan whether he was carrying marijuana in the car. Juan denied transporting any marijuana and told the officer he was welcome to search his car. As mentioned earlier, a police officer will almost always accept such a gracious offer, and this officer proved not to be unique.
The officer searched Juan\'s car, beginning with the front seat. There was a jacket lying on the seat and when the officer lifted it he found a can of air freshener underneath it. The officer asked to look in the trunk and again Juan consented. The officer later testified that in the trunk he found "a box of Downy dryer sheets lying on top of a spare tire and a hang-up air freshener." At that point, the officer began to get very suspicious and intensified his search .of the trunk. He noticed that the back of the rear seat looked like it had just recently been spray painted and seemed to be covered with an adhesive material. He pushed on the back seat and discovered it was harder than would be expected. When the officer entered the back seat area of the car and pulled the back seat forward, he discovered a secret compartment and was overcome with the aroma of marijuana. Inside the secret compartment were numerous packages containing marijuana.
In court, Juan’s attorney argued that when the officer pulled apart Juan’s back seat, his search exceeded the scope of Juan\'s consent. He argued that no one stopped for speeding reasonably expects a police officer to tear his car apart even if he consents to a search. The court disagreed, explaining that while; in general, a person who consents to a search of his car does not necessarily consent to the officer damaging his car, the rule changes if the person is present during the search and does not object to the officer\'s actions. In such circumstances, said the court, the damage can be considered to be within the scope of the person\'s consent.
The court, however, did not rest its decision on the scope of Mr. Garza\'s consent. Rather, the court found that the officer had uncovered probable cause before he removed the back seat. Therefore, armed with probable cause of wrongdoing, the officer did not need Juan\'s consent and did not need a warrant. As the court explained:
Defendant was en route from Texas to Chicago-a frequent pathway for drug trafficking-without luggage. Items for disguising odors were in the trunk and the passenger area. When the officer looked in the trunk, the adhesive material and spray paint in the rear of the trunk were apparent. When he pressed in the area behind the back seat arm rest, it was "very hard." These items, combined with the officer\'s knowledge and experience, established the probable cause necessary for the officer to proceed to look for the compartment behind the back seat. (State v. Garza [MoApp.S.D. 1993] 853 S.W.2d 462.)
Aroma, Hand-Rolled Cigarettes, Seeds & Roach Clips
In one case in Arizona, the officers stopped Mr. Lynch\'s vehicle for reckless driving. When the officer reached into the car to take Mr. Lynch\' s driver\'s license, he detected the aroma of fresh marijuana. Without obtaining a warrant, the officer searched Lynch\'s vehicle, discovering marijuana, hashish, and some pipes. The Arizona court upheld the warrant less search, holding that the aroma of marijuana provided probable cause that Lynch was in the process of transporting marijuana in his vehicle. (State v. Lynch [1978, AzApp.] 587 P.2d 770.)
After Nebraska police officers stopped Mr. Daly\'s truck for speeding, one officer detected a "faint odor of marijuana" that seemed stronger near the back of the truck. The officer advised Mr. Daly of the odor and "requested" that Mr. Daly open the rear door of the truck. When Mr. Daly complied, the officer smelled a strong aroma of marijuana, and proceeded to search the truck without a warrant. Inside the truck, the officer found more than 500 pounds of marijuana. A Nebraska court upheld the officer\'s warrant less search, finding that the officer had made approximately 50 similar arrests in the past after detecting the aroma of marijuana. Therefore, given the officer\'s experience, his detection of the marijuana aroma gave him probable cause to believe that Daly\'s vehicle contained marijuana. (State v. Daly [1979] 274 NW2d 557.)
Occasionally the courts have held that an officer\'s detection of a marijuana aroma is not sufficient to establish probable cause for a warrant less search of the vehicle. However, in those cases it was either because the officer simply lacked experience or training to positively identify the aroma as marijuana, or because the source of the aroma could not be pinpointed or its "freshness" determined.
For example, after Michigan state police officers had legally stopped Mr. Hilber\'s car, one officer detected the aroma of burnt marijuana emanating from the vehicle. For that reason, the officer performed a warrant less search of the vehicle, recovering marijuana and other drugs. A Michigan court held that the officer\'s warrant less search was illegal, saying that the aroma alone did not establish probable cause. The court based its holding on the fact that this particular officer had no training in determining how long the aroma of marijuana can linger. Therefore, the officer could not reasonably infer that the driver had just been smoking marijuana or that the car currently contained marijuana. Consequently, he did not have probable cause to search the car for marijuana. (People v. Hilber [1978] 269 NW2d 159.)
In a similar case in Montana, a court refused to find probable cause for a warrant less vehicle search after an officer detected the combined aroma of incense and marijuana following a vehicle stop. The court referred to the officer\'s own testimony that the aroma of marijuana can linger in a vehicle for more than a day. Therefore, because the officer did not actually see the vehicle\'s occupants smoking, and did not observe any other evidence of marijuana, the aroma alone was insufficient to establish probable cause that the vehicle currently contained marijuana or that the driver was currently under the influence of marijuana. (State v. Shoendaller [1978] 578 P.2d 730.)
The Supreme Court of New Hampshire has held that an officer\'s observation of a hand-rolled cigarette by itself was insufficient evidence of marijuana use to entitle the officer to reach into a vehicle and retrieve the hand-rolled cigarette without a warrant. In this case, New Hampshire state troopers stopped a vehicle driven by Forrest Ball. As one trooper approached the vehicle, he observed in the ashtray "several partially smoked manufactured cigarettes, as well as a partially smoked hand-rolled cigarette." Unable to identify the contents of the hand-rolled cigarette by sight, the officer reached in, removed it from the ashtray, and smelled it. He concluded that the cigarette contained marijuana, and arrested Mr. Ball. A search of Mr. Ball led to the discovery of additional contraband.
The New Hampshire Supreme Court held that the officer\'s warrant less seizure of the hand-rolled cigarette was illegal, even under the plain-view rule, because the incriminating nature of the cigarette was not immediately apparent. The court stated:
Not all hand-rolled cigarettes contain contraband. Consequently, we cannot say that observation of a hand-rolled cigarette, by itself, would lead a reasonable and prudent person to believe that the cigarette contained an illegal substance. To transfer a mere suspicion about the contents of the hand-rolled cigarette into a reasonable belief based on probable cause, the officer must articulate additional corroborating facts. For instance, it might be shown that the arresting officer had the ability to distinguish hand-rolled marijuana and tobacco cigarettes by sight, or that he perceived the odor of marijuana, or that the defendant made a furtive gesture in an attempt to conceal the cigarette, or that the defendant\'s conduct was otherwise incriminating. (State v. Ball [N.H. 1983] 471 A.2d 347.)
Most courts agree that the mere observation of a hand-rolled cigarette is not sufficient to provide probable cause that it contains marijuana. However, once an officer spots a hand-rolled cigarette, very little further evidence will establish probable cause. For example, courts have routinely found that hand-rolled cigarettes establish probable cause where other elements (such as furtive acts by the suspect, the presence of drug paraphernalia, or the odor of marijuana) are present to justify the officer\'s suspicions. After stopping a vehicle driven by Julian Franklin, a New York state police officer observed a roach clip on Julian\'s key ring, that had a "charred residue" on the end but did not hold the remnants of a joint. Based on his observation of the roach clip, the officer conducted a warrant less search of Julian\'s car and discovered several plastic baggies of marijuana. A New York court held that the officer\'s observation of the roach clip did not give rise to probable cause to search Julian\' s car. Why? Because the officer "had no indication that the roach clip had recently been used for smoking marijuana by reason of its being hot or by the presence of smoke in the vehicle." Therefore, the court dismissed the case against Julian, ruling the officer\'s illegal search required the exclusion of all evidence.
In many states, any amount of marijuana seen in a car establishes probable cause to search the car\'s interior. In one case, officers stopped a car and spotted a single seed and a few stems on the back seat. The court held that was sufficient to permit the officers to search the car\'s passenger compartment.
Trunks vs. Passenger Compartments
[N another case, Officers Moffett and Najera were on routine patrol when they observed a vehicle speeding and occasionally swerving out of its lane. The officers stopped the vehicle for speeding, suspecting that the driver might be tired Dr under the influence. Officer Najera approached the vehicle and spoke with the driver, Steven Wimberly. Officer Moffett approached the passenger side, where Richard Harrison was seated. As he approached, Moffett shined his flashlight into the vehicle and saw, among other things, a smoking pipe and twelve dark seeds and the floor near Richard\'s feet.
The general characteristics of the seeds, coupled with their proximity to the pipe, led Moffett to conclude they were Cannabis seeds. Moffett ordered Richard to hand him the pipe, and Richard complied. The officer sniffed the pipe, detecting the odor of burnt marijuana. He also observed a burnt residue, including some seeds and stems, inside the pipe.
At this point, the officers ordered Richard and Steven out of the car and searched the passenger compartment. Inside, they detected the aroma of burnt marijuana. Additionally Officer Moffett found a plastic bag containing a small amount of marijuana inside the pocket of a jacket found in the car. The officers then used Steven\'s keys to open the vehicle\'s trunk. Inside the trunk they found I suitcase which they proceeded to open, revealing several pounds of marijuana and hashish.
The California Supreme Court held that Officer Moffett\'s search of the vehicle\'s passenger compartment was legal. The Court explained that Moffett tried probable cause based on his observation of the pipe and the seeds. The Court pointed out that Moffett\'s observation of the seeds alone was sufficient to establish probable cause to search the vehicle\'s passenger compartment and any :container within the compartment such as the jacket. Therefore, all the evidence found in the car\'s passenger compartment was admissible against Steven and Richard.
The Court went on, however, to hold that the officer\'s search of the vehicle\' s trunk was illegal. The Court explained that the officer\'s discovery of the pipe, seeds, and small bag of marijuana was indicative of the casual use of marijuana. Nothing indicated that the two men were transporting marijuana in the trunk. In other words, although there was probable cause to search the passenger compartment, the officer\'s further intrusion into the vehicle\' s trunk was unlawful because there was no probable cause that marijuana would be found therein. As a result, the Court held that the large amount of marijuana and hashish found in the trunk was inadmissible in court.
This decision makes an important distinction. Unlike a vehicle\'s passenger compartment, which is surrounded by see-through windows, a vehicle\'s trunk normally cannot be seen into from outside. Accordingly, the courts have found that it is reasonable for a person to expect more privacy for items placed inside a vehicle\'s trunk than for items placed in a vehicle\'s passenger compartment.
Therefore, the rule has developed that probable cause sufficient for searching a vehicle\'s passenger compartment may not be sufficient to justify the search of the vehicle\'s trunk. Rather, in order for an officer without a warrant to search the trunk of a vehicle for marijuana, he must have probable cause to believe that marijuana is concealed in the trunk.
In one case, probable cause to search a vehicle tank was held to exist when the drivers attempted to outrun the police. When the car was finally stopped, a kilo of marijuana was seen in plain view on the back seat, and three joints were seen on the floorboard. The court held that the plain-view observations, coupled with the desperate attempts to avoid apprehension, gave the officers probable cause to believe the occupants were transporting a large amount of contraband in their vehicle. Therefore, the trunk search was legal.
In another case, officers stopped a vehicle and discovered a baggie of marijuana in the passenger compartment. In addition, the officers smelled a very strong aroma of fresh, unburned marijuana that could not be attributed to the baggie. The court held that this gave the officers probable cause to believe that additional marijuana was in the trunk.
One court nicely summarized the rule for probable cause to search a vehicle\'s passenger compartment versus probable cause to search a vehicle\'s trunk compartment:
The lawful observation of marijuana debris on a seat or the floor of the interior of the car, or in the clothing of the occupants, or the smell of burned marijuana emanating from the interior of the car would give probable cause to believe that marijuana might be found in the areas adjacent and immediately accessible to the occupants, such as ashtrays, a passenger console, a glove compartment and underneath and between the seats .... Similarly, if a substantial quantity of marijuana is found inside the automobile or on the person of an occupant, it reasonably may be inferred that additional contraband may be concealed in areas of the car not immediately accessible and adjacent to the occupants, such as the trunk or under the hood. A substantial quantity of marijuana in the interior of the car would give rise to a logical inference that the car was being used to transport marijuana. (People v. Gregg [1974] 43 CalAppJd 137.)
Opening Your Trunk
As the above cases indicate, it is often possible for officers to have probable cause to search a vehicle\' s passenger compartment without probable cause to search the vehicle\'s trunk. Often, in such cases, the officers will put pressure on the driver to consent to a search of the vehicle\' s trunk. Obviously, a driver in such a situation who has a large amount of marijuana in his trunk would be foolish to waive his Fourth Amendment rights and consent to the search of his trunk. Unfortunately, the practical reality in such circumstances is that the officers will likely open the trunk anyway, hoping that a judge will later find that they did have probable cause to believe it contained marijuana.
On the other hand, if officers find marijuana in the passenger compartment and the driver knows there is no more in the trunk consenting to the search of the trunk might be the most financially sensible action. As mentioned above, it is quite likely the officers will search the trunk even without the driver\'s consent, in the hopes that a court will find they had probable cause to do so. In such a situation, if the driver does not consent, the officers will likely cause some severe and costly damage to his car by breaking open the trunk.
As one court explained:
If the officers have the right to engage in a warrant less search of the entire car they may do so by any means reasonably available; thus, if the trunk key cannot be located they may break open the trunk. Carried to its logical end, if the officers have the right to search the entire car and it is necessary to accomplish their purpose, they may rip apart any part of the car in which they should suspect that additional contraband may be found. (People v. Gregg [1974] 43 CalAppJd 137.)
Vehicle Searches-Incident to Arrest
The United States Supreme Court has held that whenever a police officer legally arrests a person in an automobile, the officer can search the person as well as the entire passenger compartment of the vehicle. Moreover, the officer\'s search can include the opening of closed containers found inside the passenger compartment.
In the case in which the Supreme Court created this rule, Officer Nicot, a New York State police officer, was driving an unmarked police car when he was passed by a speeding car. Officer Nicot gave chase and pulled the vehicle over. Inside were four occupants, including Roger Belton, who was riding in the back seat.
When Officer Nicot approached the car to write a speeding ticket, he smelled the aroma of burnt marijuana. In addition, as he spoke with the driver, he noticed an envelope on the floorboard of the car marked, "Supergold." In the officer\'s experience, such factors added up to probable cause that marijuana was inside the envelope and that the occupants had been smoking marijuana as they drove.
Therefore, under the New York rule which presumes all persons in a car to be in possession of any marijuana found in the passenger compartment, Officer Nicot ordered all four occupants out of the car and arrested them for possession of marijuana. Then, incident to the arrest of the men, the officer picked up the envelope and found that it did, indeed, contain marijuana. The officer searched the entire passenger compartment of the vehicle. On the back seat, where Roger Belton had been sitting, Officer Nicot found a black leather jacket. He unzipped the jacket\'s pockets and inside found additional illegal drugs. Roger was subsequently convicted of possessing narcotics.
Roger argued his case all the way to the Supreme Court. His position was that the officer had no right to search the closed pocket of his jacket without a search warrant. Roger argued that because Officer Nicot failed to get a search warrant, the search was illegal; hence all evidence of drugs found in the jacket should be excluded from court.
The Supreme Court rejected Roger\'s argument. The Court held that any time a police officer legally arrests the driver of a car, the officer automatically has the right to immediately search the passenger compartment of the car. Moreover, the officer may open and look inside any containers that he finds inside the passenger compartment. The Court broadly defined "containers" as:
Any object capable of holding another object. It thus includes closed or open glove compartments, consoles, or other receptacles located anywhere within the passenger compartment, as well as luggage, boxes, bags, clothing, and the like. (New York v. Belton [1981] 453 US 454.)
The Court did place one very important limit on the vehicle search, stating that the arrest of a vehicle\'s occupant does not, by itself, permit the police to search the vehicle\'s trunk. Therefore, while an officer\'s arrest of a driver allows him to search the vehicle\'s passenger compartment, he cannot search the vehicle\'s trunk unless he has probable cause to believe that marijuana is inside the trunk.
Throwing Marijuana from a Moving Vehicle
As discussed earlier, a person retains no reasonable expectation of privacy for abandoned property. For this reason, a person cannot complain of an officer\'s warrant less search or seizure of the property once it has been abandoned.
In one case, narcotics officers received a tip that a man would be transferring some marijuana from his home into his truck. The officers staked out the man\'s home and, just on schedule, observed the man exit the home with a package and place it in the truck. The man then got in the truck and drove away. One of the officers tried to stop the truck by driving alongside it and flashing the driver his police badge. Rather than pull over, however, the driver accelerated, and the agents gave chase. During the chase, the man tossed a package out the window. The officers recovered the package, searched it without a warrant, and discovered it contained marijuana.
The court held that because the man abandoned the package, the officer\'s retrieval and discovery of the marijuana inside the package was neither a "search"
135
Marijuana & Your Car
"Seizure." Consequently, the warrant less search of the package was entirely ^gal under the Fourth Amendment.
In another case, police officers performing a routine traffic stop of a speeding vehicle observed the passenger toss a bag out the window. The police recovered le abandoned bag and found marijuana inside. The court upheld the passenger\'s conviction for possessing marijuana.
Automobile Inventory Searches
Often, when a person is arrested following a vehicle stop, the arresting officer will have the person\'s car towed away and impounded. This is often done if the driver > alone when arrested and his vehicle is stopped on a public street.
When a car is impounded by the police, most states permit the police to inventory" the contents of the vehicle to avoid a lawsuit in which the owner light claims that property inside the car was not returned to him. This is known s a "vehicle inventory search." The scope of an inventory search is very broad, I fact, in most states, the police can open a vehicle\'s trunk as well as closed containers found anywhere in the car. In other words, a vehicle inventory searches ; even broader than the search permitted incident to the arrest of a vehicle\'s river.
In one case that went all the way to the Supreme Court, a Florida Highway \'patrol trooper stopped Martin Wells\' vehicle for speeding. After smelling alcohol n Martin\'s breathe, the trooper arrested him for driving under the influence of Alcohol and impounded his vehicle. At the police impound facility, an inventory search turned up "two marijuana cigarette butts in an ashtray and a locked suitcase I the trunk." The police forced open the suitcase and discovered a garbage bag containing marijuana.
The Supreme Court upheld the warrant less search of the ashtray, trunk, and suitcase, noting that the search was reasonable in order "to protect an owner\'s property while it is in the custody of the police, to insure against claims of lost, token, or vandalized property, and to guard the police from danger." (Florida v. Veils [1990] 495 US I.)
In another case, a man named Bill had grown a very robust Cannabis plant inside the closet of his city apartment. However, because of the plant\'s rapidly increasing size and aroma, Bill decided he and the plant would be better off if he loved it to the backyard of his secluded summer cabin in the country. One night, ill carefully covered the plant with a bed sheet and quietly carried it outside to be van. Bill then began the long drive to his cabin.
Along the way, Bill stopped at his favorite restaurant and had dinner. As he ^ft the restaurant he was mortified to see that his van was gone. After running round the parking lot in a panic, he came to the awful realization that he had mistakenly parked in a "No Parking" zone and the police had towed his van. When lill arrived at the police impound lot, he was arrested on numerous marijuana charges, including cultivation, transporting, and possession of marijuana.
A "seizure." Consequently, the warrant less search of the package was entirely gal under the Fourth Amendment.
In another case, police officers performing a routine traffic stop of a speeding vehicle observed the passenger toss a bag out the window. The police recovered ice abandoned bag and found marijuana inside. The court upheld the passenger\'s invocation for possessing marijuana.
Automobile Inventory Searches
Often, when a person is arrested following a vehicle stop, the arresting officer will have the person\' s car towed away and impounded. This is often done if the driver ; alone when arrested and his vehicle is stopped on a public street.
When a car is impounded by the police, most states permit the police to inventory" the contents of the vehicle to avoid a lawsuit in which the owner light claims that property inside the car was not returned to him. This is known s a "vehicle inventory search." The scope of an inventory search is very broad. N fact, in most states, the police can open a vehicle\'s trunk as well as closed containers found anywhere in the car. In other words, a vehicle inventory search > even broader than the search permitted incident to the arrest of a vehicle\'s river.
In one case that went all the way to the Supreme Court, a Florida Highway \'patrol trooper stopped Martin Wells\' vehicle for speeding. After smelling alcohol n Martin\'s breathe, the trooper arrested him for driving under the influence of Alcohol and impounded his vehicle. At the police impound facility, an inventory each turned up "two marijuana cigarette butts in an ashtray and a locked suitcase n the trunk." The police forced open the suitcase and discovered a garbage bag containing marijuana.
The Supreme Court upheld the warrant less search of the ashtray, trunk, and suitcase, noting that the search was reasonable in order "to protect an owner\'s property while it is in the custody of the police, to insure against claims of lost, token, or vandalized property, and to guard the police from danger." (Florida v. Veils [1990] 495 US 1.)
In another case, a man named Bill had grown a very robust Cannabis plant snide the closet of his city apartment. However, because of the plant\'s rapidly creasing size and aroma, Bill decided he and the plant would be better off if he moved it to the backyard of his secluded summer cabin in the country. One night, Jill carefully covered the plant with a bed sheet and quietly carried it outside to us van. Bill then began the long drive to his cabin.
Along the way, Bill stopped at his favorite restaurant and had dinner. As he aft the restaurant he was mortified to see that his van was gone. After running around the parking lot in a panic, he came to the awful realization that he had mistakenly parked in a "No Parking" zone and the police had towed his van. When Jill arrived at the police impound lot, he was arrested on numerous marijuana charges, including cultivation, transporting,
Bill should not have parked in a "No Parking" zone. Since the police impounded his van, they were legally authorized to conduct an inventory search which revealed the Cannabis plant.
Since an inventory search is permitted only if your car is impounded, it stands to reason that you can avoid such a search if you can prevent the officer from impounding your car. There are several strategies you can use. First, if you have a passenger in the car when you are arrested, and that person is legally able to drive, you can try turning your keys over to the passenger and giving him or her permission to drive your car home for you.
Second, some people have been able to appeal to the officer\'s goodwill by being very polite during the arrest and then asking the officer if he would be so kind as to move the vehicle off the road and into a private parking lot. (Obviously, you do not want to use this tactic if you think the officer will smell or see marijuana when he enters the car.) Some officers understand that impounding a vehicle costs the owner a lot of money, and if you can engender their sympathy, they may move your vehicle to give you a break.
Lastly, you may be able to avoid impoundment if you, yourself, pull your vehicle into a private parking lot. If you suddenly realize that an officer is pulling you over, and you suspect you are going to be arrested, you should immediately look for an upcoming parking lot to pull into. The goal is to get your car off the public roadway, thereby making it much less likely that the officer will have it impounded. Of course, you must be very careful when using this tactic. If you drive too far after the officer turns on his overhead lights or siren, you could face an additional charge of fleeing a police officer.
Containers in Cars
Using a marijuana case as the platform for narrowing all people\'s rights, in 1991 the United States Supreme Court announced a new rule that severely reduced the right to privacy in regard to closed containers taken into an automobile. In this case, Officer Coleman of the Santa Ana, California, Police Department received word from a DEA agent that the agency had intercepted a Federal Express package containing marijuana addressed to a person in Santa Ana. Officer Coleman was told to take the package to the local Federal Express office and secretly wait for the addressee to come and claim the package. Officer Coleman did so, and observed a person retrieve the package. He followed the person to his home and staked out the house with several other officers.
After a few hours, the officers observed another individual (later identified as Steven) arrive at the home. Steven left about ten minutes after arriving, and carried a brown paper bag that was the same size as the marijuana package sent through the mail. Steven placed the bag in the trunk of his car and drove away. The officers followed him, stopped him, opened the trunk, opened the bag, and found marijuana inside. Steven was then arrested.
Bill should not have parked in a "No Parking" zone. Since the police impounded his van, they were legally authorized to conduct an inventory search which revealed the Cannabis plant.
Since an inventory search is permitted only if your car is impounded, it stands to reason that you can avoid such a search if you can prevent the officer from impounding your car. There are several strategies you can use. First, if you have a passenger in the car when you are arrested, and that person is legally able to drive, you can try turning your keys over to the passenger and giving him or her permission to drive your car home for you.
Second, some people have been able to appeal to the officer\'s goodwill by being very polite during the arrest and then asking the officer if he would be so kind as to move the vehicle off the road and into a private parking lot. (Obviously, you do not want to use this tactic if you think the officer will smell or see marijuana when he enters the car.) Some officers understand that impounding a vehicle costs the owner a lot of money, and if you can engender their sympathy, they may move your vehicle to give you a break.
Lastly, you may be able to avoid impoundment if you, yourself, pull your vehicle into a private parking lot. If you suddenly realize that an officer is pulling you over, and you suspect you are going to be arrested, you should immediately look for an upcoming parking lot to pull into. The goal is to get your car off the public roadway, thereby making it much less likely that the officer will have it impounded. Of course, you must be very careful when using this tactic. If you drive too far after the officer turns on his overhead lights or siren, you could face an additional charge of fleeing a police officer.
At his trial in California, Steven\'s attorney successfully argued that the officers\' search of the bag was illegal because the officers failed to get a search vagrant for the trunk or the bag. The prosecutor, however, appealed the case to him Supreme Court, which held that the officers\' search was legal.
The peculiar nature of this decision becomes clear when it is contrasted with his explanations in Chapter Five of the conditions under which search warrants ire usually required. To review, if an officer sees a person walking down the street vita a closed container such as a briefcase, and has probable cause to believe the briefcase contains marijuana, he cannot open the briefcase without first obtaining I search warrant (unless, of course, the person consents to the warrant less search, >r another exception to the warrant requirement applies). The officer must obtain I search warrant even if he has probable cause to believe that the briefcase :contains marijuana.
However, under the rule created by the Supreme Court, if that person gets not a car, carrying that same briefcase, an officer is able to search the container without. First getting a search warrant! Once a container is placed in an automobile, it loses a great deal of its protection against warrant less searches.
Your Car and the Plain-View Rule
When a police officer has stopped your vehicle for a valid reason, he can seize any )objects which he sees in plain view so long as their illegal nature is immediately apparent. A common example of the plain-view rule in action arises when a >arson is stopped for a simple traffic violation. When the officer comes up to write he traffic ticket, he sees some marijuana on the dashboard or in the ashtray. In ,much cases, it is not an illegal search or seizure for the officer to reach into the car mad seizes the marijuana without first obtaining a warrant. Other arrests have >occurred because a person consented to an officer entering their car to obtain their River’s license or vehicle registration and, in so doing, the officer spots a see-through baggie of marijuana in the glove-box. Ordinarily, such marijuana would lot have been in "plain-view" since it was inside the glove box. However, since he officer had a right to be in the car and look where people ordinarily keep their vehicle registration (inside the glove-box), his spotting and seizing of the marijuana was legal under the plain view rule.
Furtive Movements
Recurring issue in many auto searches is what has come to be known as "furtive movements." A furtive movement gives the appearance that the person is attempting to retrieve or conceal contraband. An example of a furtive movement could be when an officer lawfully stops a vehicle and sees an occupant bend town or reach behind the seat.
At his trial in California, Steven\'s attorney successfully argued that the >officers\' search of the bag was illegal because the officers failed to get a search vagrant for the trunk or the bag. The prosecutor, however, appealed the case to him Supreme Court, which held that the officers\' search was legal.
The peculiar nature of this decision becomes clear when it is contrasted with his explanations in Chapter Five of the conditions under which search warrants ire usually required. To review, if an officer sees a person walking down the street vita a closed container such as a briefcase, and has probable cause to believe the >briefcase contains marijuana, he cannot open the briefcase without first obtaining I search warrant (unless, of course, the person consents to the warrant less search, )r another exception to the warrant requirement applies). The officer must obtain I search warrant even if he has probable cause to believe that the briefcase :contains marijuana.
However, under the rule created by the Supreme Court, if that person gets not a car, carrying that same briefcase, an officer is able to search the container without first getting a search warrant! Once a container is placed in a motorbike, it loses a great deal of its protection against warrant less searches.
Occasionally, when an officer performs a search of a vehicle that he later believes may have been illegal, he will try to beef up his report by indicating that "the suspect made a furtive movement as if he was retrieving a weapon," or "as I pulled over the suspect\'s vehicle, I observed him bend down as if to retrieve a weapon from under his seat."
As previously explained, a police officer ordinarily can\'t search a vehicle or its occupants following a routine traffic violation. However, if the officer sees the driver or occupant make a furtive movement, the officer has a legitimate concern for his safety and is therefore permitted to search the area into which he saw the person reach. Moreover, if some other factor, in combination with the person\'s furtive movement, gives the officer probable cause to believe the person is transporting marijuana, the officer has a right to arrest the person and search the entire passenger compartment of the car, including closed containers.
Consenting to a Search of Your Car and Withdrawing Consent
If a police officer is unable to establish probable cause to search a car, he can still search if the car\'s driver gives consent. The officer will usually say something like, "Would you please open your trunk?" or, "Do you mind if I look in your trunk?" Remember, as explained earlier, the officer is hoping the person will foolishly waive his or her constitutional right to be free from unreasonable searches. In this situation, a person desiring to assert his constitutional right to be free from unreasonable searches and seizures is wise to politely withhold consent and to inform the officer he would like to continue on his way. If for some reason the person does consent to a search, he may still withdraw his consent during the search, so long as he does so before the officer finds something illegal.
As an example, Officer Rockwell legally stopped Ernie\'s car because of its cracked windshield. Rockwell had a hunch that Ernie was a marijuana smoker, but had no probable cause to search his car. Rockwell asked Ernie, "Would you mind if I looked in your trunk?" Ernie, not wanting to offend the officer, handed Rockwell the key to his trunk and stepped out of his way. Officer Rockwell opened the trunk and began searching.
Suddenly Ernie remembered that he had a small bag of marijuana inside the first-aid kit in his trunk. Ernie quickly but calmly told Officer Rockwell, "O.K., stop your search. That\'s good enough. I\'ve got to get going now."
Ernie was foolish to consent to the trunk search. However, withdrawal of his consent was valid, since Officer Rockwell had not yet found anything illegal or anything that would establish probable cause. If Officer Rockwell had continued searching after Ernie withdrew his consent, any marijuana found should have been excluded from court.
Whose Pot Is It?
If marijuana is found hidden in your car (rather than on one of the passengers), a presumption arises that the marijuana was possessed by you because you control the vehicle. In most states, a passenger in a vehicle is not presumed to be in control of the vehicle, and hence is rarely convicted of possession when marijuana is discovered hidden in a car. To convict a passenger in such cases, the prosecution must produce evidence that links the passenger with the marijuana.
In one case, Texas police officers stopped a car and discovered more than 400 pounds of marijuana in the vehicle\'s trunk. The driver, as well as a passenger named Lawrence McCullough, were arrested and subsequently convicted of possessing marijuana. They each received a five-year sentence in state prison. Lawrence appealed his conviction, arguing that he was simply a passenger in the car and that the evidence was insufficient to prove that he knew that marijuana was inside the vehicle\'s trunk. The prosecutor argued that the arresting officer smelled marijuana inside the car and that so must have Lawrence. The officer also observed the vehicle\'s spare tire in the back seat, which, the prosecutor argued, should have given Lawrence reason to believe that something was inside the trunk. Lastly, the prosecutor argued that during the stop Lawrence "was nervous, with a rapid heartbeat, breathing heavily, and appeared to be excited and trembling."
The court found that these factors were insufficient to convict a passenger of possessing marijuana found inside a vehicle\'s trunk. The court agreed with Lawrence\'s arguments that the fact that trained police officers could smell marijuana is no evidence that a layperson, like Lawrence, could do so; that the tire in the back seat also failed to prove that Lawrence knew marijuana was in the trunk; and that nervousness is an appropriate response to a confrontation with police officers and, again, did not necessarily indicate Lawrence knew that there was marijuana in the trunk.
However, a trend may be starting in the other directions. A New York law has been passed holding that any drugs found in the passenger compartment of a car (except those found on an occupant) are presumed to be possessed by each and every person in the car at the time the drug was found. Under the New York law, every occupant must prove his or her innocence if marijuana is found in the passenger compartment. This extremely harsh law permits prosecutors to obtain several convictions in cases where previously they would likely have gotten only one.
Driving Under the Influence of Marijuana
In every state, it is a crime to "drive" or "operate" a motor vehicle while under the influence of marijuana. There are basically two elements to the crime: (1 )driving or operating a motor vehicle, and (2) being under the influence of marijuana at the time of such driving.
The various states differ regarding the precise action outlawed. At last count, seven states make it illegal to "drive" a motor vehicle while under the influence. In these states, the courts originally interpreted the word "drive" as requiring actual movement of the vehicle. Those states which outlaw "operating" a vehicle when under the influence interpret their law more broadly than for "driving." In most such states, "operating" is often defined as simply having access to the physical controls of the vehicle. However, the recent trend is to broaden the crime of "driving" under the influence; hence some courts have interpreted "drive" to be the same as "operate." Therefore the difference between the two types of laws is really insignificant, because nearly all those states which outlaw "driving" under the influence are now broadly interpreting that word to include simply "operating" a motor vehicle. A very good and surprisingly common example of the long-arm of this law is illustrated by the following case.
Gene, a constant marijuana smoker, was on a solo road trip on a relatively unused state route. As midnight approached, he decided to pull off the road, onto the shoulder, and sleep a few hours. He turned off his headlights as well as his engine. However, because it was rather chilly outside, he left his keys in the ignition and turned them to the position that would allow him to run his heater and listen to the radio.
As Gene was drifting off to sleep, he was awakened by bright headlights directly behind him. When he peeked out his back window, he was greeted by the local sheriff, who was stopping just to see if Gene needed some assistance. When Gene rolled down his window to speak with the sheriff, the sheriff smelled marijuana and, after giving Gene some field sobriety tests, arrested Gene for operating a motor vehicle while under the influence of marijuana.
Gene\'s attorney argued that Gene\'s action did not constitute "operating" a vehicle. Needless to say, the court disagreed. The court held that Gene was indeed operating the vehicle by placing his keys in its ignition and turning on the electrical components. Therefore, Gene\'s conviction for driving under the influence of marijuana was upheld.
The states are split on the issue of whether a crime is committed if the driving or operating of a vehicle occurred only on private property. In some states, the law explicitly states that the conduct is only outlawed "on a public highway." However, the clear trend is toward outlawing any driving under the influence, whether on public or on private property. California has just such a law, representative of the recent trend, which states: "It is unlawful for any person who is under the influence of an alcoholic beverage or any drug, or when under the combined influence of an alcoholic beverage and any drug, to drive a vehicle."
Under such a law, it is clear that a person can be arrested and convicted of driving under the influence when backing out of his driveway, driving a tractor on farm lands, or driving in a private parking lot.
If a police officer has reason to believe you are driving under the influence of any drug (including legal drugs), he can stop your vehicle and require you to complete some sobriety tests. These tests involve physical tests, such as walking heel-to-toe, touching your nose, and balancing on one foot, as well as mental tests, such as counting backward.
In addition to giving you these tests, an officer who suspects you of driving under the influence of marijuana will likely shine his flashlight in your eyes, measure the responsiveness of your pupils, and take your pulse. After the officer administers any or all of these tests, he can arrest you if your poor performance gives him probable cause to believe that you were driving or operating a vehicle under the influence of marijuana.
Often, the real proof that a person was "under the influence" of marijuana comes by way of a blood or urine t |
