Determining whether a Search By Police During a Traffic Stop or Home Visitation was Lawful
A search of your vehicle, hotel room, your person or home by law enforcement agents without a search warrant is presumptively unconstitutional, except under certain exceptions (for example, when voluntary consent is given). When law enforcement officers conduct searches that are not justifiable and/or unlawful, any contraband or evidence seized thereby may be suppressed.
Individuals are protected by the U.S. Constitution and the Maine Constitution.
Why Are Searches Conducted
Searches may be conducted by law enforcement officers for various reasons including:
- To seize contraband connected to criminal activity;
- During emergencies where the safety, life, or welfare of person or persons is in jeopardy;
- To seize evidence of a crime other than contraband in connection with an investigation; or
- To protect the public or other law enforcement agents. i.e., to find knives, guns, or other weapons that may be or have been used in a crime.
The Maine Constitution, Art. I, § 5 protects individuals from warrantless searches and generally requires law enforcement to obtain a search warrant to search and seize evidence of a crime. It states that: “[t]he people shall be secure … [from] unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without … probable cause supported by oath or affirmation.”
Even in situations where a car has been impounded, this rule still may apply. (Chambers v. Maroney, 399 U.S. 42 (1970)).
However, both state and federal law recognize the so called vehicle exception to the general search warrant requirement. This exception permits law enforcement officers to search a car in transit without a warrant when there exists probable cause to believe that it contains evidence of a crime.
The rationale for this exception is based on a vehicle’s mobility which permits an immediate search due to the risk that delaying the search could provide an opportunity for removal of evidence from the vehicle.
The 4th Amendment of the United States Constitution states the “right of the people to be secure…against unreasonable search and seizures.” This amendment mandates that law enforcement follow protocols to properly secure a search warrant. Facts in the form of a sworn affidavit must be presented to a magistrate or judge sufficient to establish probable cause that evidence of a crime is located at the place sought to be searched. State v. Hawkins.
A common mistake is belief that the Fourth Amendment requires a warrant in support of every search or seizure. However, the Fourth Amendment does permit warrantless searches and seizures under certain circumstances such as during fresh pursuit of a suspect, to avoid destruction of evidence and during an inventory search of a vehicle that has been impounded. Warrantless searches may be challenged in a court proceeding known as a“suppression hearing.” There, defense attorneys seek to have the Judge toss out or suppress evidence seized during a warrantless search arguing that the search was unlawful. If successful, the Judge applies the “exclusionary rule” to disallow such evidence to be used against a defendant.
Cell Phones and Buses
In a groundbreaking ruling in June 2018, the Supreme Court, in Carpenter v. U.S., decided that government agents and law enforcement must obtain a warrant before searching and obtaining cell phone information, providing another layer of protection.
Furthermore, on February 28, 2020, Concord Coach Lines stopped allowing U.S. Customs and Border Protection (CBP) agents to board their buses without a warrant to question or search their passengers. Other bus lines have implemented similar rules.
However, both the Maine Supreme Court and U.S. Supreme Court recognize four exceptions to this rule whereby a warrantless search of a car may be conducted:
- Where the search takes place in conjunction with a lawful arrest;
- Law enforcement has probable cause that a vehicle in transit contains evidence of a crime
- Where law enforcement takes inventory of a vehicle’s contents (according to SOP)
- Law enforcement has a reasonable suspicion that a vehicle contains a weapon and conducts a limited protective search. Michigan v. Long, 463 U.S. 1032 (1983))
Are people protected against all searches and seizures by the Fourth Amendment? No. Of course not. It protects people against unreasonable seizures and searches.
But who determines whether the search is reasonable or not?
- If law enforcement or a government agent applies for a search warrant, a judge determines whether the affidavit in support of the warrant establishes probable cause to justify the search.
- If law enforcement or a government agent conducts a search in the field without a search warrant, a judge will review the determination if the search is challenged by a Motion to Suppress filed by the subject of the search.
The same procedures is applicable in determining probable cause.
- Probable cause can either be determined by a Judge before the search or in the field by law enforcement or a government agent, subject to a Judge’s review.
What constitutes probable cause? The applicable standard of proof necessary to establish probable cause is whether it is more likely (probable) than not, based on the information and facts known at the time, that a crime has been committed and evidence of that crime is located in the place to be searched. All lawful searches and arrests must be based on probable cause.
The Law Firm of Richard Berne has over 45 years of experience in federal and state criminal defense in various state and federal crimes.
Mr. Berne applies his extensive knowledge of criminal law to advocate on your behalf to avoid prosecution and if charges are brought against you, to achieve the best possible results.
Call Richard Berne, Criminal Defense Attorney, today for a free consultation and see if we can help.