Virginia Criminal Defense Attorney
If you are pulled over and suspected of driving while under the influence in Fairfax, law enforcement may want to search your car. When this happens, there are a number of constitutional protections you have that if violated may be used as a defense. With this in mind, the following is information on your rights regarding vehicle searches and what a law enforcement officer must have to make a search legal. To learn more or discuss the specifics of your case, call and schedule a consultation with a Fairfax DUI lawyer today.
An unreasonable search is a search that’s based on less than probable cause. All searches are presumed to be unreasonable unless they have a warrant. So if police have a warrant for your search, that means that a magistrate or a judge has already determined that there’s probable cause and the search is presumed to be reasonable.
However, a warrant-less search of your car or your person is presumed to be unreasonable unless the commonwealth can show that it was reasonable based upon the officer’s observations. In other words, the officer must be able to spell out in court what led him or her to believe there was probable cause to believe that you were either committing an offense or that you were armed or had contraband on you.
If the police can’t articulate probable cause, then they can’t search you constitutionally. Likewise, they can’t arrest you unless they have probable cause to believe you’ve committed an offense. That’s what it means to have the protection of the constitution against unreasonable searches.
A warrantless search is any search not pursuant to a search warrant. In the case of a warranted search, a police officer gets a warrant from a judge or a magistrate and comes back with a piece of paper stating that he or she has a warrant to search you. That search is then presumed to be reasonable. Of course, the officer has to spell out the facts to a judge or a magistrate to get that piece of paper. But once the officer has it, the search is no longer a warrantless search as long as the search pursuant to the search warrant is presumed to be valid.
On the other hand, the majority of searches during traffic stops are warrantless searches. This is when an officer searches your car, your pockets, your bags or whatever else you may have. In order to do that, an officer must have probable cause to believe that the item being searched contains either contraband or the fruits of an illegal operation. So the officer must believe that it contains some evidence that is going to help build a case against you, and it must be based on probable cause rather than just a hunch or a belief that it might contain some evidence. So officers really need to be able to spell out why they searched what they searched. A warrantless search is presumed to be unreasonable unless police can show otherwise.
In order for a search to be constitutional, an officer needs to show that there was probable cause to believe you had contraband on you. For instance, if an officer can say that he or she smelled the odor of marijuana coming from your pocket, he or she can most likely do a warrantless search of your pocket. However, if there’s a general odor of marijuana in the area and the officer can’t really tell who it’s coming from so he or she just searches everyone, that will not be enough to justify a search of someone’s pocket.
One of the requirements of probable cause is that it needs to be particularized to the individual who’s being searched. And that can be based on various sets of facts as long as the officer can articulate why there was reason to believe that someone was in possession of contraband. And that reason has to be something that any other reasonable officer could also believe to be grounds for probable cause. Ultimately, the judge makes that decision after a hearing on a motion to suppress.