Obtaining Justice
For The Accused

At Ahmed & Sukaram, Attorneys at Law, we have been saving clients from jail, years in prison, excessive fines and wrongful convictions since 2005.

Obtaining Justice
For The Accused

At Ahmed & Sukaram, Attorneys at Law, we have been saving clients from jail, years in prison, excessive fines and wrongful convictions since 2005.

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Being Searched by the Police

A question that criminal defense attorneys are often asked is when is it permissible for the police to search me or search my car? This is an area of the law that is constantly changing, but below is a brief synopsis of some of the more important things to know regarding what the police can and cannot do.

When can the police pat you down?

 The short answer is that the police need “reasonable suspicion.” In the case of Terry v. Ohio, the United States Supreme Court outlined the following principles for when law enforcement may pat down the outer clothing of a suspect on the streets:

[W]here a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.

(Terry v. Ohio (1968) 392 U.S. 1, 30.) But in order to justify a frisk, “[t]he officer must be able to point to specific and articulable facts together with rational inferences therefrom which reasonably support a suspicion that the suspect is armed and dangerous. [Citations.]” (People v. Dickey (1994) 21 Cal.App.4th 952, 956.)

Stated otherwise, in order to pat you down on the streets, a police officer needs to be able to point to specific facts that support the conclusion that you’re armed and dangerous. And when determining whether reasonable suspicion exists, courts look to the “totality of the circumstances.”

When can the police search you?

 The police can conduct a full search of your person beyond patting down your outer layers if they have “probable cause.” “[P]robable cause means ‘a fair probability that contraband or evidence of a crime will be found[.]’” (U.S. v. Sokolow (1989) 490 U.S. 1, 7, quoting Illinois v. Gates, 462 U.S. 213, 238 (1983).) Probable cause exists “where the known facts and circumstances are sufficient to warrant a [person] of reasonable prudence in the belief that contraband or evidence of a crime will be found [citations].” (Ornelas v. U.S. (1996) 517 U.S. 690, 696.)

Probable cause is a higher standard than reasonable suspicion. While reasonable suspicion only requires specific facts and inferences from those facts, probable cause requires a “fair probability” that contraband or evidence of a crime will be found on the suspect.

When can the police search your car?

The general rule is that the police need a warrant to search your car. But there are a few exceptions to this requirement. Here are two of the most common exceptions:

The Automobile Exception

“Under the automobile exception, police who have probable cause to believe a lawfully stopped vehicle contains evidence of criminal activity or contraband may conduct a warrantless search of any area of the vehicle in which the evidence might be found. [Citations.]” (People v. Evans (2011) 200 Cal.App.4th 735, 753.) But this exception “applies only to searches of vehicles that are supported by probable cause.” (U.S. v. Ross (1982) 456 U.S. 798, 809, fn. omitted.) Under this exception, “a search is not unreasonable if based on facts that would justify the issuance of a warrant, even though a warrant has not actually been obtained.” (Ibid., fn. omitted.) “Ross allows searches for evidence relevant to offenses other than the offense of arrest, and the scope of the search authorized is broader.” (Arizona v. Gant (2009) 556 U.S. 332, 347.)

Stated another way, under the automobile exception to the warrant requirement, police can search an automobile simply if they have probable cause. There’s no need for the police officer to go obtain a search warrant. But to use this exception, the police still must have probable cause that would be sufficient for them to get a warrant if they could. In other words, “probable cause to justify a warrantless search of an automobile ‘must be based on objective facts that could justify the issuance of a warrant by a magistrate and not merely on the subjective good faith of the police officers.’” (People v. Carrillo (1995) 37 Cal.App.4th 1662, 1667, quoting United States v. Ross, supra, 456 U.S. at p. 808.)

Search Incident to Arrest

The police may also search your vehicle if you have been arrested. In Arizona v. Gant, the United States Supreme Court outlined the two scenarios where law enforcement may search a vehicle incident to an arrest. First, police may “search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.” (Arizona v. Gant (2009) 556 U.S. 332, 343, fn. omitted.) Second, “circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is ‘reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.’ [Citation.]” (Ibid.)

In other words, the police may search your car following your arrest if (1) you are unsecured and within reaching distance of the passenger compartment at the time of the search or (2) it is reasonable to believe evidence related to the crime you were arrested for might be found in the vehicle.

What should you do if the police ask to search you or your car?

 If an officer asks to search you or your car, it is perfectly permissible to say no and ask them to go obtain a warrant. If you say yes, then the officer has your consent to search, and you likely will not be able to challenge their actions in court later.

If you tell an officer that you do not want them to search you or your car but they insist on doing so, be compliant but do not say anything. Any words that you say during the search of you or your car can be later used against you in court, so the best practice is to stay silent.