Joseph A. Lombardo
The fourth amendment of the Constitution is what protects the rights of people from unlawful search and seizure of their personal effects. However, cause when being pulled over is a little less clear cut.
There is case claw that lays down the rules involving the search and seizure of motor vehicles, and they are complicated. For instance, the Constitution says that a persona has a right to be secure in their ‘persons, houses, papers, and effects’. This protects against warrantless or unreasonable search and seizures, and anything found outside of a lawful search and seizure cannot be used to arrest, prosecute, or convict someone. There are certain exceptions to the police needing a warrant to search though, including searches (on persons) related to a lawful arrest. This type of search was made legal in Payton v. New York in 1980. However, these types of searches are not allowed when an officer does not extend to circumstances where the possibility of criminal activity is not immediately known, witnessed, or found to exist. For instance, the police officer does not have the right to search or interrogate someone when searching for evidence or trying to get them to incriminate themselves when that person is not known or witnessed to have been engaging in potentially unlawful behavior.
So how is this applied to a police officer searching your vehicle?
When it comes to motor vehicle searches following a traffic stop, search and seizures get a little more complicated. First off, the initial reason that the vehicle was pulled over by the police officer must be proven to have been ‘reasonable’. If it can be proven that the initial traffic stop was not reasonable, no other information or evidence obtained through subsequent searches and interrogations cannot be used to arrest, try, or convict and individual. So let’s say a driver is pulled over or a legitimate reason – what happens next? A case called Wong Sun v. The Unites States, states that a police officer may search a vehicle and create an inventory of the content are in situations where the police officers think that the protection of the contents of the vehicle may be in danger either from being damages, stolen, or lost. However, another case in New Jersey named New Jersey v. Ercolano held that a police officer must have a ‘substantial need to conduct an inventory search’, and that if the owner of the vehicle is present (as they would be during a traffic stop), there is no need to perform a search under Wong Sun v. The United States. As the New Jersey case law is applied, the consent of the vehicle owner must be sought (when they are present) before the police can search your vehicle.
The New Jersey State Supreme Court issued an additional decision again two decades later in a case called New Jersey v. Mangold in which the court held that contraband discovered through a search or inventory conducted prior to allowing vehicle owners or occupants to utilize their own means to safeguard their own property would be inadmissible in the arrest, prosecution, or conviction of an individual. That case went further to state that in order for inventory of the vehicle to be taken in the event that the driver consents, there must a standardized procedure applied in which police officers must have lawfully impounded the vehicle, the inventory search is not conducted with the intention of conducting an ‘exploratory’ search (which limits the scope of a search to non-intrusive alternatives), and that option is given to the owner to consent to the inventory (without consent or reasonable expectation that the contents will be unsafe if the driver is not present, an inventory cannot be conducted). This last part is important – even if not given or received, the owner must have an opportunity to remove belongings prior to the inventory being conducted.
Probable cause to search areas of the car besides those in plain view or a passenger compartment (the areas in the door) can only be established when suspicious items are found in plain view or within one of those compartments. If a lawful search is conducted and suspicious items are found in plain view or in those compartments, the police officer is then allowed to search the truck and other areas that would need an ‘intrusive’ search to be reached. A court later held that a ‘small’ amount of marijuana in a visible area does not alone constitute probable cause to search the rest of vehicle unless other findings or circumstances suggest that the driver is participating in the trafficking of narcotics.
If you have been stopped and are about to, or have had, your vehicle searched by police
First off, never consent to allow the police to search your vehicle. It is advisable to be polite and compliant without incriminating yourself. It is your constitutional right to both not incriminate yourself and to have an attorney present before you consent to anything. If you have been stopped and your vehicle has already been or is about to be searched, contact us today. The Law Offices of Joesph Lombardo has been representing individuals against criminal charges stemming from traffic stops since 1993. We represent individuals in Voorhees, Hammonton, Atlantic City, Mt. Laurel, Egg Harbor, Glouchester, and every other county and township in Southern New Jersey. We will work to make sure that your rights were not violated and we will challenge evidence and the circumstances surrounding your search and arrest. We will work to have the charges against you lessened or dismissed, all while preparing your case for the possibility of a trial. Mr. Lombardo, a former Municpal County Prosecutor, is ready and willing to carry the defense against your charges through trial, if necessary.
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