Warrantless Searches | The Police Need Probable Cause

 Scott C. Thomas, Esq.

May 01 2019

The police need a warrant, probable cause, or reasonable suspicion to conduct a search of your person or vehicle...right? Wrong! Police can conduct warrantless searches, not supported by probable cause or reasonable suspicion, under the guise of "officer safety" and what are known as "administrative searches."

Law enforcement officers have wide latitude in conducting searches to ensure that officer safety is maintained. In Terry v. Ohio, The United States Supreme Court stated that if an officer has reason to believe he or she is dealing with an individual who may be armed, the officer is allowed to conduct a pat down search of the individual for weapons. The search must be an open-palm pat down of the exterior of a subject's clothing and the officer must have articulable facts that form the basis of the officer's belief that an individual may be armed. The scope of a Terry search can extend to the inside of a vehicle, anywhere that is within an arm's reach of any of the vehicle's occupants.

On paper this makes sense, however, in practice, law enforcement officers use Terry searches as a means of searching an individual when lacking reasonable suspicion to support said search. More often than not, the facts the officer articulates that led to his or her safety concerns are dubious at best. However, courts are reluctant to suppress evidence derived from these searches out of fear of compromising officer safety.

Another way in which law enforcement conducts warrantless searches is by way of administrative searches. If you find yourself wondering what exactly an administrative search is, think of an airport security line. The reason why it is lawful for our baggage and person to be searched at an airport is that the public safety interest in conducting such searches outweighs the intrusion into our privacy, and the searches are conducted in such a way as to leave little to no discretion, regarding who will be searched, to the officer. The same holds true for DUI and license checkpoints.

Now, where things get a little sketchy is when law enforcement officers use administrative searches to conduct a search of a vehicle that they otherwise could not lawfully conduct. A prime example is the DUI arrest. Following the U.S. Supreme Court decision in Arizona v. Gant, auto searches incident to the arrest of a driver for DUI were found unconstitutional. The reasoning behind this decision is that once a motorist is arrested for DUI, he or she is already outside of their vehicle, and thus, are unable to reach any weapons that may be concealed in the vehicle, thereby negating the necessity of a search of the vehicle incident to arrest. However, if an officer has a hunch that the vehicle may contain contraband of some kind, he or she can get around this prohibition by ordering the vehicle impounded; once impounded, an inventory search of the vehicle is conducted to determine what property is in the vehicle. This is done to protect both the arrestee and the law enforcement agency; it also has the ancillary benefit of allowing law enforcement to conduct a thorough search of a vehicle they could not otherwise lawfully search.

The take away from all of this is that if law enforcement officers want to search you or your vehicle, and they probably will find a way, even without a warrant, probable cause or reasonable suspicion. The best thing you can do if you find yourself in a bad spot is to politely state that you are invoking your right to remain silent and request that all questioning cease until counsel is present.

All hope is not lost as a good criminal defense attorney should be able to flesh out the details that would demonstrate to the court that the officers are using these tactics to circumvent the requirements of the Fourth Amendment at a suppression hearing. If you or anyone you know feels as though you they the victim of an unlawful search, do not hesitate to contact my office as I offer free consultations and I am happy to review the strengths and weaknesses of a case, as well as any defenses, all free of charge. Using Medical Marijuana In California.

It never ceases to amaze me how often I hear people say that because they have a physician's recommendation to use medical marijuana, or a Medical Marijuana Program Act ID card, they can smoke marijuana anywhere while doing anything...even while driving! Before delving into the inaccuracies of the above statement, let me be crystal clear on one issue: possession of marijuana is illegal under federal law and any advice rendered, applies only to California state law.

Before I explain where you can smoke medical marijuana legally in the state of California, perhaps it would be better to start by explaining where you cannot smoke medical marijuana. Under California state law, you cannot smoke medical marijuana in any place where smoking is prohibited by law; in or within 1,000 feet of the grounds of a school, recreation center or youth center, unless the medical use occurs within a residence, on a school bus, while in a motor vehicle that is being operated or while operating a boat. That being said you are free to smoke in any place that is not listed above.

However, one thing to be cognizant of is that it is not always easy to determine whether you are within 1,000 feet of a school, recreation center or youth center. That being said, it may be advisable to only use medical marijuana within the confines of your home, out of an abundance of caution. Just because you can do something, does not necessarily mean you should, and smoking marijuana in public will certainly get the attention of any law enforcement officers who may be downwind.

I can already hear people saying, "well it says you cannot smoke in a car that is being operated...so why not just pull over and box the car? It's not being 'operated!'" NO! Bad idea! I say this because, while the conduct may technically be lawful, you are exposing yourself to a potential DUI investigation. If you are caught smoking in your car, even if not in operation, the first thing a police officer will do is try to determine if you were driving under the influence. If the car is warm to the touch, or there are other indicia that the car was recently driven, the officer can certainly take you in for DUI based upon the circumstantial evidence. Whether or not charges will be filed invariably depends on the facts of the case, but why even put yourself through this?

If you're a qualified patient with a valid physician's recommendation to use medical marijuana, or have a Medical Marijuana Program Act ID card, you have a lot of latitude, subject to the aforementioned restrictions, on just where you can toke up. The question you have to ask yourself is whether or not it is worth a negative experience with law enforcement. I mean come on, who really wants to deal with cops when they're high? Sometimes, it's safer just to stay at home and get high on the couch!

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