Motor vehicle searches

• Author: Deja Vishny
• Pages: 343-424

MOTOR VEHICLE

SEARCHES

6-1

CHAPTER 6

MOTOR VEHICLE SEARCHES

I. GOVERNING PRINCIPLES

A. Your Rights

§6:01 Right to Privacy and to be Free From Trespass

§6:02 Right to Challenge Stop/Search – Standing

B. Overview of Law Governing Vehicle Stops

§6:03 General Rule: Reasonable Suspicion

§6:04 Anonymous Tipsters

C. Overview of Law Governing Search/Seizure of Vehicle and Occupants

§6:05 What Constitutes a “Seizure”?

§6:06 When is a Search Allowed?

[§§6:07-6:09 Reserved]

II. RIGHTS OF DRIVERS AND PASSENGERS IN VEHICLE STOPS

A. Governing Law

§6:10 Federal Law: All Persons in Vehicle Subject to Questioning and Detention

§6:11 State Law and Other Limits on Police Action

B. Sample Fact Pattern: Minor Non-Moving Violation

§6:12 Sample Direct Examination by Prosecutor

§6:13 Cross-Examination Issues and Strategy

§6:14 Sample Cross-Examination: No Specif‌ic Articulable Facts to Justify Pat Down

C. Variation on Fact Pattern: High-Crime Neighborhood and/or Late Night

§6:15 Sample Cross-Examination

§6:15.1 No Specif‌ic Information About this Vehicle

§6:15.2 No Specif‌ic Observation or Personal Knowledge of

Vehicle Occupants Involved in Criminal Activity

§6:16 Legal Argument at Motion Hearing

D. Variation on Fact Pattern: Prolonged Detention and Abandoned Property

§6:17 Sample Cross-Examination

§6:17.1 No Detection of Drugs before Abandonment

§6:17.2 Placement in Squad Constitutes Arrest

§6:17.3 Prolonged Detention

§6:18 Legal Argument at Motion Hearing

E. Sample Fact Pattern: Anonymous Tipster

§6:19 Sample Cross-Examination

§6:19.1 Caller Did Not Specif y Personal Observations of Intoxicated Driving

§6:19.2 Off‌icer Did Not Observe Traff‌ic Violation or Impaired Driving

§6:20 Sample Argument

[§§6:21-6:23 Reserved]

MOTOR VEHICLE

SEARCHES

Suppressing Criminal Evidence 6-2

III. TERRY FRISK OF CAR

A. Governing Principles

§6:24 Limited Search for Weapons

B. Common Fact Patterns

1. Moving Violation; Car Search; Concealed Carry Permit ted

§6:25 Sample Cross-Examination

§6:26 Legal Argument at Motion Hearing

2. Non-Criminal Traff‌ic Violation: Drugs Found in Car

§6:27 Strategy

§6:28 Sample Cross-Examination

§6:28.1 Off‌icer’s View from Police Squad Car

§6:28.2 Off‌icer’s View Standing Next to Stopped Vehicle

3. Police Report Indicates Fur tive, Suspicious or Nervous Movement by Driver

§6:29 Strategy

§6:30 Sample Cross-Examination

§6:30.1 Limited View from Squad

§6:30.2 Innocuous Explanation for Movement

§6:30.3 Nervous Behavior

§6:30.4 Lack of Prior Record

[§§6:31-6:33 Reserved]

IV. VEHICLE SEARCHES INCIDENT TO ARREST

A. Governing Law

§6:34 Search of Passenger Compartment and Containers Within

B. Common Scenario

§6:35 Sample Fact Pattern

§6:36 Strategy

§6:37 Sample Cross-Examination

§6:37.1 Cer tainty of Arrest

§6:37.2 Safety Procedures when Making Arrest

§6:37.3 Availability and Security of Handcuffs

§6:37.4 Availability and Security of Squad

§6:37.5 Actions Violated Training and Department Procedures

§6:38 Legal Argument at Motion Hearing

[§6:39 Reserved]

V. “AUTOMOBILE EXCEPTION” TO WARRANT REQUIREMENT AND PROBABLE CAUSE

A. Governing Principles

§6:40 Probable Cause

§6:40.1 Vehicle Readily Mobile

§6:40.2 Automobile Exception Does Not Justify Warrantless Curtilage Entry

§6:41 Container Searches

B. Odor of Marijuana

§6:42 Governing Law

§6:43 In Practice: Challenging Search es Based on Marijuana Odor where Marijuana is Legal

§6:43.1 Cross-Examination of Off‌icer

§6:43.2 Argument

§6:44 In Practice: Challenging Searches Based on Smell of Unburnt

Marijuana in Jurisdictions Where Marijuana is Illegal

§6:44.1 Sample Case Scenario

§6:44.2 Sample Cross Examination

§6:44.3 Argument

§6:45 Compare CBD and Delta 8 Products

[§6:46 Reserved]

MOTOR VEHICLE

SEARCHES

6-3 Motor Vehicle Searches

C. Dog Sniffs

1. Before the Motion Hearing

§6:47 Governing Law

§6:48 Common Fact Scenario

§6:49 Strategy

§6:50 Research the Dog and Handler

2. Cross-Examination of Dog Handler

§6:51 Lack of Double-Blind Testing

§6:51.1 Lack of Records Showing Error Rate in a Controlled Environment

§6:51.2 Certif‌ication Facility is Inadequate

§6:52 False Positive Alerts

§6:53 False Negative Alerts

§6:54 Dogs Less Accurate than Machines

§6:55 Drug Odors May Not be Recent

§6:56 Other Variables Affecting Dog’s Accuracy

§6:57 Varying Types of Alerts; Dog Departs from Past Practice

§6:58 Dog Responding to Handler’s Unconscious Cues

D. Extended Traff‌ic Stops

§6:59 Prolonged Detention due to Dog Sniff

§6:59.1 Legal Issues

§6:59.2 Sample Cross-Examination

§6:60 Legal Issues re: Other Circumstances Resulting in Prolonged Detention

E. Traff‌ic Checkpoints

§6:61 Governing Law

§6:62 Strategy

§6:63 Sample Fact Pattern

§6:64 Sample Cross-Examination

§6:64.1 Off‌icer’s Actions

§6:64.2 Compare Off‌icer’s Actions with Department Guidelines

§6:64.3 Prolonged Detention

§6:65 Legal Argument at Motion Hearing

[§§6:66-6:69 Reserved]

VI. COMMUNITY CARETAKER AND INVENTORY SEARCHES

A. Community Caretaker Searches

§6:70 Governing Law

§6:71 Sample Fact Pattern

§6:72 Sample Cross-Examination

§6:73 Sample Argument

B. Inventory Searches

§6:74 Governing Supreme Court and Federal Case Law

§6:75 Sample Fact Pattern

§6:76 Cross-Examination Strategy

§6:77 Sample Cross-Examination: Failure to Comply with Department Policies

§6:78 Additional Areas of Cross When Vehicle is Impounded

§6:78.1 Motive to Search Car

§6:78.2 Off‌icer Unfamiliar with Department ’s Inventory Policy

§6:78.3 No Inventory Sheet

§6:78.4 Client Not Provided Inventory Sheet or Asked to Sign It

§6:79 Sample Argument

§6:80 Challenging Alleged Reason for Impoundment

§6:81 Sample Cross-Examination: No Reason To Impound Vehicle

§6:82 Challenging the Right of Vehicle Occupants to Remove Personal Property Before

Impoundment and Search