LEGAL QUESTION

[GoneForever]

An officer cannot unlock anything without a seperate search warrant.

 

[Deepsea]

Can the police legitimately search my vehicle without a warrant?

A : That depends on the circumstances. The police would not usually have the right to search your automobile when you are stopped only for a minor traffic offense such as speeding, but if the violation requires that you be taken into custody (for example, a "Driving Under the Influence" [DUI] arrest or driving with a suspended license), the search would generally be permitted. If the officer has arrested you, the officer does not need a warrant to pat down your body in searching for weapons.

In general, when an arrest is not involved, the police have more latitude to search a vehicle than to search a home. The U.S. Supreme Court recognizes an automobile exception to the Fourth Amendment's protection against warrantless searches. The Court has held that a person expects less privacy in an automobile than at home. (No one ever said "A man's Chevy is his castle.") The rationale for permitting warrantless searches of cars is that the mobility of automobiles would allow drivers to escape with incriminating evidence in the time it would take police to secure a search warrant. For a warrantless search to be valid, however, the officer must have probable cause. (See the "Criminal Justice" chapter for more details on this topic.)

This should settle the dispute... If you want to read the entire page than go to this link:
**broken link removed**

 

[parttimer]

Most courts allow the search of locked glove compartments incident to arrest.(28) For example, in Wisconsin v. Fry,(29) the Wisconsin Supreme Court validated the contemporaneous search of a locked glove compartment incident to a lawful arrest. The court found no meaningful distinction between a locked container and a closed but unlocked container regarding the constitutional protection provided to them. The Fry court followed the general fourth amendment principles set forth by the U.S. Supreme Court in United States v. Ross30)

Sorry not always true.

Similarly, in United States v. Valliant,(32) the U.S. Court of Appeals for the Eighth Circuit upheld the search of a locked briefcase found on the passenger seat of the arrestee's car as a valid search incident to arrest.

The general principles applied in Belton have been applied in nonautomotive settings by other courts.(34) In United States v. Silva,(35) the U.S. Court of Appeals for the Fourth Circuit, relying on Belton, approved of the search of a locked, zippered bag incident to the arrest of two suspects in a hotel room. The suspects were sitting on the beds, handcuffed behind their backs, and surrounded by armed FBI agents at the time of the search. One of the agents obtained the key to the bag from the pocket of one of the arrestees.

 

[ghostdog128]

An officer cannot unlock anything without a seperate search warrant.

Absolutely not true. Read my other post regarding the glovebox and the federal ruling.

 

[ghostdog128]

Is the search of a locked glove box only if they have access to a key? I saw that somewhere as well that covered lock containers if a way to open it without destroying it was legal.

That's a good question. I'm not sure. I read the entire ruling on US vs Holifield, and in that particular case there was a key. But I also read in another ruling while researching this stuff that a search of a locked box without a key was valid as well. The judge in that case ruled that the suspect may have a hidden key or an alternate way of opening the glovebox that an officer was not privy too.

I'd have to go digging again for that case because I've read about 30 briefs in the last two days trying to find that fold down one.

 

[parttimer]

I think I answered my own question in the last post!!

court found no meaningful distinction between a locked container and a closed but unlocked container regarding the constitutional protection provided to them.

No mention of the key!

 

[BigJohn]

So I guess the moral of the story is transport drugs in the trunk of a car that does NOT have fold down rear seats.

One thing I wonder about is my car has a locking switch on the rear fold down seats to prevent valets having access to the trunk. Would this be sufficient for claiming an illegal search if the switch was engaged?

Also, there is a lever that opens the trunk next to the drivers seat, but you would have to exit the vehicle to access the trunk. Would this be a legal reason to permit an officer to search the trunk regardless of your refusal?

As a side note, some people I know told me a story about being stopped and the cops wanting to search. They claim everyone exited the vehicle, locked the doors and refused the search. And the cops backed down. I tend to think the cops gave them a break, but what is the real legal scoop here?

And no I'm not thinking of becoming a drug runner...

 

[parttimer]

I would venture to say if the seats area locked but you have access to the key you are screwed. All depends on how deep the officer wants to go.

 

[GoneForever]

An officer CANNOT unlock anything without a warrant, that goes for inside the car and the trunk. There first has to be probably cause to search the vehicle which better be damn good, then a warrant needs to be issued to search the trunk or anything locked even if the key is on the key chain.

 

[tatteredxangelx]

he doesnt have folding seats

 

[ghostdog128]

An officer CANNOT unlock anything without a warrant, that goes for inside the car and the trunk. There first has to be probably cause to search the vehicle which better be damn good, then a warrant needs to be issued to search the trunk or anything locked even if the key is on the key chain.

Fourthgen you need to read up alittle more on this stuff, read the US vs Holifield brief. PC is not needed to search a vehicle. In a Terry search, PC doesn't even come into play only reasonable suspicion. As far as needing a warrant to search anything locked, not true. Read US vs Holifield. It's right there in black and white english.. Courts have ruled that due to the exigent circumstances of traffic stops officers can unlock gloveboxes and look inside for weapons. No PC, no warrant required there, only reasonable suspicion.

Second if an officer has PC then a warrant is not needed and he may search that entire car and rip it apart if he wants..no warrant needed. The courts have ruled that if an officer has enough PC to have a warrant issued then he may search as if a warrant was issued. So there again, no warrant needed. Let me guess you took a criminal justice class in college that was taught by an attorney who more than likely never studied constitutional law past what he learned in law school and is not up on current case law.

 

[ghostdog128]

So I guess the moral of the story is transport drugs in the trunk of a car that does NOT have fold down rear seats.

One thing I wonder about is my car has a locking switch on the rear fold down seats to prevent valets having access to the trunk. Would this be sufficient for claiming an illegal search if the switch was engaged?

Also, there is a lever that opens the trunk next to the drivers seat, but you would have to exit the vehicle to access the trunk. Would this be a legal reason to permit an officer to search the trunk regardless of your refusal?

As a side note, some people I know told me a story about being stopped and the cops wanting to search. They claim everyone exited the vehicle, locked the doors and refused the search. And the cops backed down. I tend to think the cops gave them a break, but what is the real legal scoop here?

And no I'm not thinking of becoming a drug runner...

Keep in mind I'm not an attorney so this is only from my days as an MP and what I learned in that time. To your first question, no it wouldn't be enough to claim an illegal search. You can still access the switch quick, and bottom line is you can access the trunk from inside the vehicle.

Second question, no a trunk with only outside access regardless of method of opening could not be searched based on a terry search. If an officer had PC then you can refuse all day long, he can search anyways.

Third question is tough, there's too many variables that we don't know about to give an informed answer. Did the officer have a reasonable suspicion to conduct a Terry search, if yes then they could all be arrested for resisting or obstruction. Same if he had PC. If LE gives you a legal order and one does not comply then they will be arrested for resisting or obstruction depending on local. They a search incident to arrest will occur anyways.

 

[GoneForever]

I dont know man, im taking the advice I got straight from a sheriff. There is no way this is true. Next im sure your gonna say if he has PC and rips the car apart, he has to pay for no damages if he finds nothing right? No, this is not a third world country. Words straight from a sheriff, YOU HAVE TO HAVE PC TO SEARCH AND A WARRANT TO UNLOCK ANYTHING.

Fourthgen you need to read up alittle more on this stuff, read the US vs Holifield brief. PC is not needed to search a vehicle. In a Terry search, PC doesn't even come into play only reasonable suspicion. As far as needing a warrant to search anything locked, not true. Read US vs Holifield. It's right there in black and white english.. Courts have ruled that due to the exigent circumstances of traffic stops officers can unlock gloveboxes and look inside for weapons. No PC, no warrant required there, only reasonable suspicion.

Second if an officer has PC then a warrant is not needed and he may search that entire car and rip it apart if he wants..no warrant needed. The courts have ruled that if an officer has enough PC to have a warrant issued then he may search as if a warrant was issued. So there again, no warrant needed. Let me guess you took a criminal justice class in college that was taught by an attorney who more than likely never studied constitutional law past what he learned in law school and is not up on current case law.

 

[Deepsea]

I dont know man, im taking the advice I got straight from a sheriff. There is no way this is true. Next im sure your gonna say if he has PC and rips the car apart, he has to pay for no damages if he finds nothing right? No, this is not a third world country. Words straight from a sheriff, YOU HAVE TO HAVE PC TO SEARCH AND A WARRANT TO UNLOCK ANYTHING.

I've heard different things from diffferent people. All the cops have to do is show that they had reason to believe there were drugs in the trunk.

 

[ghostdog128]

I dont know man, im taking the advice I got straight from a sheriff. There is no way this is true. Next im sure your gonna say if he has PC and rips the car apart, he has to pay for no damages if he finds nothing right? No, this is not a third world country. Words straight from a sheriff, YOU HAVE TO HAVE PC TO SEARCH AND A WARRANT TO UNLOCK ANYTHING.

The problem with your info is that ALOT of officers, deputies, sheriffs, etc... are not current on case law. Sure when your friend went through his academy that was probably the case. But you can't argue established case law. It's there in black and white. Usually state DA send updates to the departments in their jurisdiction updating case law. Your sheriff friend is absulutey not correct and is not up on his case law, tell him to read that case or contact his own DA office. He and you are wrong. Is this the same friend that said we as the buyer of "research chemicals" are not responsible as long as the seller has posted a disclaimer? He's wrong on that account too, the end user always has the responsibilty to ensure that he follows the law in regards to products they are using. That's like saying a gun manufacturer says I can't use a firearm to murder someone but I do it anyways, but I'm not responsible because the manufacterer had a no murder disclaimer. Come on. Call the FDA or DEA right now and ask them.

And no, and officer and department is usually not responsible for any damage that occurs through a lawful search. The courts have ruled that as well.. Also I really wouldn't put faith in this person's words as he doesn't seem to know the difference between PC and a warrant. The courts have ruled that if an LEO has PC it's the same as having a warrant, and no warrant is needed to search due to the exigent circumstances and time constraints of a vehicle stop. If I have PC as an LEO it's considered the same as a warrant, and I can open and unlock anything in a vehicle, no warrant needed. Prosecutors usually like an LEO to have a warrant because it bolsters the case somewhat but it's not needed if PC is in hand. Ask him what happens when a K9 hits on a vehicle. A K9 hit establishes PC, at that point LEO's can rip that car apart, and unlock anything. Guess what they may not find anything because the drugs may have already been taken out but the odor is still there for the dog to pick up. Are they responsible for any damage that occurred? No, they had a lawful hit by a K9 giving them PC, No warrant needed to search or unlock anything. Could they get a warrant sure, at that point the hit establishes enough PC to get a warrant but again the courts have ruled due to the time constraints and exigent circumstances of a traffic stop PC is the same a warrant.

Also have you ever seen a K9 alert on a vehicle. Some are trained for passive alerting some aggresive alerting. An aggresive alerting dog will scratch the fuck out of the the spot, so it may be a door and the paint gets fucked up. Is the department responsible? usually no. But that is different in ever jurisdiction.

EDIT: I just wanted to also say that case law changes on a daily basis, so what an LEO learned in his academy 6 months ago, or 6 years ago may no longer be correct. This is why most LEO's still believe only in what they learned in their academies.

 

[ghostdog128]

I've heard different things from diffferent people. All the cops have to do is show that they had reason to believe there were drugs in the trunk.

Well I think the arguement between us at this point is the issue of the locked glovebox not the trunk. Established case law in:

United States v. Holifield, 956 F.2d 665, 666-67 (7th Cir. 1992),

allows for the cursory search of a locked glovebox for weapons based on reasonable suspicion only, NOT PC or WARRANT.

 

[GoneForever]

Ok sorry bro but this is america. A cop cannot tear apart thousand of dollars in your car, find nothing, and thats it. A lawsuit will surely happen but more than likely the department will pay for it.

 

[parttimer]

It would be a civil case to recover the damages to the vehicle. The officer would only have to show by a preponderance (sp) of evidence that he had enough to go on to search a vehicle. I have seen cars ripped apart and things broken after a K9 hit. If nothing is found you are sent on your way. Usually, I say usually, nothing comes from it because the person who's car you just tore apart is dirty and doesn't want to cause a stir.

 

[Deepsea]

**broken link removed**

I posted this earlier but am not sure if anyone actually looked at it. This site explains a lot... CHECK IT OUT...

 

[GoneForever]

If the K9 hits it, it gives them more PC to rip apart stuff, but if "nothing" is found they are liable for all damages.

It would be a civil case to recover the damages to the vehicle. The officer would only have to show by a preponderance (sp) of evidence that he had enough to go on to search a vehicle. I have seen cars ripped apart and things broken after a K9 hit. If nothing is found you are sent on your way. Usually, I say usually, nothing comes from it because the person who's car you just tore apart is dirty and doesn't want to cause a stir.