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, 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 officer’s are using these tactics to circumvent the requirements of the Fourth Amendment at a suppression hearing. If you or anyone you know feel as though you were 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 an weaknesses of a case, as well as any defenses, all free of charge.