When do the police have the right to stop you?
There are three ways that the police can legally stop you. One is with an arrest/search warrant, one is a detention based on probable cause or reasonable suspicion, and lastly one is with your consent.
What is an arrest warrant?
An arrest warrant is a document which is prepared by law enforcement, outlining that probable cause exists that a crime occurred and a specific person committed it. These warrants are then taken to a Judge, who reviews them to make sure that the evidence is there to support issuance of the warrant. An arrest warrant always names a specific person(s) for arrest.
What is a search warrant?
A search warrant is similar to an arrest warrant, as it must be reviewed and signed by a Judge in order to execute it, however, it does not name an individual person on it, but an address that is to be searched. This type of warrant must include probable cause to believe that laws are being broken at this residence. For example, police may have been conducting surveillance at a residence and witnessed criminal behavior. Law enforcement may not know who is committing any alleged crime, but that evidence of the crime is in that residence.
Can a search warrant be executed at any time?
A search warrant must outline facts that establish probable cause that a crime occurred, and is now occurring at the residence. If the search warrant is for narcotics at a certain residence, the warrant must be applied for and then executed in a very quick timeframe. Say the warrant was granted by the judge in the month of January, police must execute it within a few days. If the police try to execute the warrant in March, it would be considered stale information and could be suppressed in court. This is because consumable items such as drugs could not reasonably be expected to still be in the house months later.
Can the police come into your home without a search/arrest warrant?
Yes, but only if you give them consent or if there are what are called exigent circumstances .
What are exigent circumstances?
This is when police see you committing a crime, try to stop you but you run into your house. For example, say you are smoking a joint on the street and the police see you and smell the marijuana. At that moment they know a crime is being committed in their presence. They try to stop you but you run into your house. Police are then allowed to follow you inside to arrest you for that crime.
Can the police come in my house just because they smell marijuana?
No they cannot come in with a warrant or consent. The smell of marijuana alone is not enough to prove that the drug is still in the home. The police officers can detain you outside your home until a warrant is prepared and signed for them to search. That usually takes time, so police like to use consent to enter the home. This means you agree to have police come in and search the home.
Why would anyone agree to allow police to search their home?
Sometimes, police officer may say that if you consent to the search, they won’t arrest other persons in the home such as spouses or other family members. If you have children, they may mention that an arrest may cause your children to be taken away from your custody. Sometimes, you may think if you cooperate the police will leave you alone. All of this is done to secure your consent to enter your home.
Is consent given verbally or in written form?
Consent can be either verbal or in writing. Police may have you sign a form which is called a consent to search. This is usually pretty strong evidence that consent was given, so avoid it if possible.
Police very often say verbal consent was given, which would be harder to prove in court than with the form.
What is required for consent to be valid?
In order for consent to be valid, it must be freely and voluntarily given. If you can show that police used their authority to acquire consent, then it may not be valid.
How do police use their authority to secure consent?
Many times, a person feels like they cannot say no to the police because something worse can happen to them. If the circumstances show that the police used tactics that would make a reasonable person afraid to say no or walk away, then the consent may not be valid.
What is probable cause to arrest someone?
Probable cause exists when police have evidence that will establish the elements of a crime. For example, if someone robbed a store and it was caught on tape, police can arrest that person without a warrant because probable cause exists.
What is reasonable suspicion to detain someone?
A reasonable suspicion that someone is involved in a crime is not the same a probable cause. Let’s say you get stopped for speeding and the police are issuing a ticket. They notice your eyes are glassy, you are slurring, and smell like alcohol. The police can now have a reasonable suspicion that you may be driving drunk or intoxicated. They can detain you to do tests or investigation to see if that is the case.
Can police detain you if they smell of marijuana in a car?
Yes, because you are in a vehicle, they can detain you. This is unlike the situation in a home, where police cannot enter based solely of the smell of marijuana. Because you are driving and can be a threat to the public if intoxicated, the law allows the police to detain you to investigate the smell of marijuana. This means they can ask you to exit the vehicle and remain there until they are done.
Can police search my car during a traffic stop?
No. Unless they see or smell a crime occurring, police do not have the right to search your vehicle during a routine traffic stop. However, many officers will ask for your consent to search the vehicle and the person. You do not have to give consent.
Can police search my passenger during a traffic stop?
Generally, the police cannot detain your passenger unless there is a reasonable suspicion that they committed a crime. In the case of marijuana smell, police can detain both driver and passenger while they investigate.
Can police order us out of the car during a traffic stop?
Yes, if they are concerned about officer safety and the facts of the case support it. Police can’t use that as an excuse to have everyone exit the car?
Can police try to forfeit my car if drugs are found inside?
Yes, the police department will begin forfeiture proceeding to try to acquire your car because drugs were found in it. This is a separate proceeding than the criminal case and is done usually in the first month of arrest, sometimes prior to the case being filed.