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Search and Seizure: What Rules Do the Police Have to Follow?

Interviewer: Let’s talk about illegal search and seizures. What are the rules that police officers have to follow as far as search procedures and warrant? Are police officers generally aware that they’re going against these rules?

Brian Geno: That can be separated into two sections. The first one, are police aware of the rules related to search and seizure? Yes, they are very aware of that. As a matter of fact, it starts at the police academy and it goes all the way through their entire career.

They will continue to brush up on what the rules are for search and seizure and stop and arrest. They will use the rules to their benefit, but the rules are the rules. They have to stick by them just like everyone else does.

The Police Must Have Reasonable Suspicion to Stop You in the First Place

That’s the answer to the first question. The second one is what are the rules? This is the general rule of thumb. A police officer cannot stop you. The constitution gives you the right to be left alone unless the police officer has what’s called reasonable, articulable suspicion of some wrong-doing. If they have that, then they can stop you and talk to you.

Reasonable Suspicion Does Not Give Police the Right to Make an Arrest

That would be when the police officer stops you for weaving on the road and he stops you because there isa reasonable suspicion that something is wrong because you’re weaving. But that does not give him the right to arrest you. That just gives him the right to stop you.

There are a number of variations on that, but that’s the general rule. Then the second one related to arresting you, he has to have probable cause to arrest you. Again, there are a few variations on that, but if a police officer has a hunch that you’ve done something wrong, he can’t arrest you for that. As a matter of fact, for the hunch, he can’t even stop you for that.

Probable Cause Is Needed for an Arrest

As far as arresting goes, if he stops you for weaving and then he smells the odor of marijuana in your car once he pulls you over. When he talks to you, you sound a little bit odd to him. You may have slurred speech or something like that. Those would all be things that he would use to formulate probable cause.

Are You Being Prevented from Leaving the Scene of the Police Stop?

He says, “Will you please get out of the car? Can I search your car? Sit over there on the curb while I search your car.” That person is effectively under arrest under Virginia law. Even though the officer didn’t say you’re under arrest, even though the officer didn’t put you in handcuffs or put you in his cruiser or take you away, you understand at that point because he’s giving you an order to do something against your will and you do it.

It would have to be in that circumstance that he has developed the reasons for every piece of my example, to prove a possession of marijuana case. If the case were a possession of oxycodone being sold a thousand feet from a school for example, one, he would have to have stopped you for a good reason, but then he stops you, he’d have to see or know about the oxycodone.

He have to know and have some evidence that it wasn’t obtained by prescription and then he would have to have some evidence that it was all within a thousand feet of a school. If he did all of that, then he would have probably cause to arrest you for either one of those two felonies, the one selling within a thousand feet of a school or illegal possession of oxycodone.

Those are just two examples but the crimes can change. Each piece of the crime has to be in the officer’s mind. He must have the evidence for each piece of it in his mind before he makes the arrest. That’s the general rule.

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