Search And Seizure On The Road
We get a lot questions about search and seizure and what your constitutional rights are when you're on the road. Now, there's no way that one column in one edition could ever tell you everything you wanted to know about search and seizure.
But, we can head you in the right direction. Here's the truth.
QUESTION: Doesn't a cop need a warrant to search my truck?
ANSWER: YES and NO. We know what you're thinking. Sounds like the typical answer an attorney would give to a simple question. But,the answer really isn't that simple. Here is what the Fourth Amendment of the U.S. Constitutionsays:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation,and particularly describing the place to be searched, and the persons or things to be seized.
So, even though the Constitution requires law enforcement to get a warrant before doing a search and seizure, any good rule always has exceptions and there are six exceptions to the warrant requirement, (meaning that law enforcement does not need a warrant to conduct a search.) Here'sthe six exceptions:
1. Consent: Just like it sounds, if you voluntarily consent to a search or the company you drive for gives consent, then no warrant is needed.
2. Automobiles: The reason for this exception is pretty straight forward. An automobile is, ofcourse, mobile and can leave a particular place in a short period of time.
But, law enforcement has to have what's called "probable cause" (would a reasonable cop believe the vehicle was used in or contains evidence of a crime) before they can search without a warrant.
3. Incident to a lawful arrest: That's right, if you're lawfully arrested police can search within your immediate reach for weapons, evidence, etc.
4. Plain view: Police don't need a warrant to if he/she sees evidence and has probable cause to believe something is illegal or related to a crime or criminal activity.
5. Stop and frisk: This allows an officer to "pat you down" if he/she has a reasonable suspicion of some criminal activity or that you're armed.
6. Hot pursuit: This occurs when there's no time to request a warrant and the officer needs to act to prevent the destruction or loss of evidence.
QUESTION: My truck isn't an automobile. What if a cop asks to search my truck?
ANSWER: Great question! You've got several options here. First, you can politely ask the officer what exactly he or she is looking for and what his/her probable cause is to believe you've got it in your truck.
Or, if you don't have anything to hide and you're feeling cooperative, you can consent to a limited search and specify the areas in your truck you're agreeing to have searched.
For example, tell the officer that you're only giving permission to search to the cab of the truck and not the sleeper. Last, you can refuse any search.
BUT, if the officer really feels that there's probable cause to search your truck, be prepared to be put out of service until he/she gets backwith a warrant. (FYI, Never, never, never violate an out of service order!)
QUESTION: My truck was searched and nothing was found, but they left all of my belongings and paperwork scattered everywhere. Don't they have to put my things back the way they were?
ANSWER: NO. Unfortunately, there's no requirement on law enforcement to put your items back in theway they were. But, if something was broken during the search, you probably have a good cause for damages.
QUESTION: What if the cop finds something illegal in my truck, but the search itself was illegal? Does my case get dismissed?
ANSWER: NO! Just because something illegal was found illegally doesn't mean that your court case will be dismissed. But, the particular item that was found illegally would be suppressed or excluded from the case.
In other words, your case doesn't get dismissed but the evidence can't be used against you. The case may or may not be dismissed depending on whether there is other evidence for the prosecution to go forward.
We hope you can use the information in this column to help with every day, real life problems you face on the road.
We invite you to send us any questions or commentsyou may have regarding transportation law to:
1330 N. Classen Blvd., Suite 215
OklahomaCity, OK 73106
fax to (405) 272-0558.
Road Law Homepage