A police offer may stop a person if he has an articulable and reasonable suspicion of criminal activity. The authority to investigate suspected criminal activity may include the authority to conduct a pat down search for officer safety. The purpose of a pat down is to find weapons that might put the officer or other bystanders in danger. Although it may result in the discovery of of there evidence, the pat down cannot be a general exploratory search for whatever evidence of criminal activity officers might find. Whether a reasonable person in the officers circumstances would have believed there was a danger, regardless of whether the officer actually feared for his own safety or the safety of others. Weapons searches under Terry present two main issues
- Was the search reasonable at the outset
- Did the facts support a finding that a reasonable officer would have feared for his safety.
What Justifies a Pat Down
- Sudden movement of suspect’s hand
- The circumstances of the detention, for instance, a defendant fleeing from officers in a heavy Narcotics trafficking area
- Unprovoked flight from officers
- Pacing nervously in the dark, unsecured are suspected of narcotics operations
- Officer provides knowledge that a suspect owns or has weapons.
An immediate pat down of a suspects outer clothing is the most common activity conducted under a Terry search, but the permissible scope of Terry searches is broader
- Officers may reach into an area of a suspects clothing when the officer has specific information that the suspect has a weapon hidden there.
- Officers may search a car, or the passenger compartment of a car if they believe a weapon might be hidden there, and officers have reasonable belief that the occupant is dangerous
- Officers may search purses if they believe a weapon may be hidden there, even if an initial pat down does not uncover a weapon.
- Officers may ask the driver or passenger to get out of the car.
- Courts will look at the purpose of the stop, and the time needed to fulfill that purpose, and the method used to investigate it.
Search During The Traffic Stop
An officer who has made a valid traffic stop may order passengers as well as the driver to exit the vehicle. Without reasonable suspicion, officers may only conduct consensual questioning of passengers in a vehicle. Searches of passengers and their belongings, depending on the facts, might be authorized under at least two warrantless exceptions:
- A search incident to arrest includes the right to search the passenger compartment of the vehicle if the defendant is an occupant of the vehicle at the time of his arrest; and contraband found in the car can lead to probable cause to believe any or all occupants of the car are committing the offense of drug possession and authorize a search of the driver and all passengers and all areas of the car.
- Consent can also authorize a passenger search, but note that consent from the driver of the car does not necessarily extend to cover searches of the passenger’s belongings. A driver may also have standing to contest the search of a passenger in his car.
Police may conduct a valid warrantless search if a suspect voluntary and intelligently consents. The relevant issues in a consent case are:
- Voluntariness of the consent,
- Scope of the consent, and
- Authority of person giving the consent.
The question of whether an individual has voluntarily consented to a search can be answered by examining all relevant circumstances to determine if there has been coercion. Because knowledge of a right to refuse to consent is not a prerequisite of a voluntary consent, an officer is not required to advise an individual of his right to refuse before obtaining voluntary consent.
Consent cannot be coerced by explicit or implicit means, by implied threat or by force, and the suspect’s consent must be unequivocal. Mere acquiescence to an officer’s lawful authority is not sufficient to establish voluntary consent. Police do not have to give a defendant Miranda warnings prior to obtaining his consent to a search. Consent can also be implied through a defendant’s actions. Additionally, oral consent is sufficient; there is no requirement that an officer get consent in writing. Displaying weapons by officers, seeking consent from a mentally impaired suspect, or handcuffing a suspect at the time consent is given are the types of factors courts have cited in finding that consent was not voluntary.
The scope of the search is limited by the scope of consent. But consent extends to all areas to which a reasonable person under the circumstances would believe it extends. The standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of objective reasonableness, what would a reasonable person have understood by the exchange between the officer and the suspect. Courts might question both the timeframe and the area included in the scope of a person’s consent to search. A defendant’s consent to search his car includes searching a closed container.
Authority to Consent
A person with common authority over property may consent to its search. Assuming that the consent was given voluntarily and the search didn’t exceed the scope of the consent given. The consenting person must have an expectation of privacy in the place or object searched. A person who co owns property may give consent on behalf of the absent co owner, but not if the co owner is present and denies consent. Courts look for the following factors in reviewing the facts surround the consent to search:
- Consent must be obtained from an individual with an expectation of privacy
- The consenting person individual must understand the circumstances and voluntary waive his constitutional rights to privacy; and
- The person who consented must have contemplated that police would search as extensively as they do.
Courts have ruled that third parties in the following types of relationships to defendants can give effective consent to search under their joint control and use
- Spouses, if consent has not been limited or refused by the other spouse;
- Employers and employees;
- Landlords and roommates;
Courts have limited the right of third parties to consent in the following situations
- Child consenting to search parent’s home;
- Motel employee before expiration of the guest’s occupancy time;
- Roommates, after one roommate has moved out.
Texas law includes 10 statutory exceptions to the general requirement that arrests should be made with a warrant.
- Presence or View of Officer
- Suspicious Place or Circumstances
- Protective Order Violations
- Preventing Consequences of Theft
- Presence or View of Magistrate
- Assault/Family Violence
- Fleeing Felons
- Fugitives from another State
- Interfering with Emergency Phone Calls
- Admissible Felony Confessions
Contact : Collin County Criminal Lawyer
Collin County criminal lawyer Constantine Anagnostis dedicates his practice to people who are facing criminal charges, with a primary emphasis on DWI, Drug Offenses, Expunction & Nondisclosure Agreements, and Occupational Driver’s License Issues. Collin County criminal lawyer Constantine G. Anagnostis understands the law, procedures, and penalties pertaining to criminal law, and will aggressively fight to protect your rights. Collin County criminal lawyer Constantine Anagnostis provides the utmost personal dedication to each and every case, and truly cares about his clients. You may call 817-229-0319 to schedule a free consultation, or submit a sample case form. At DFW Criminal Lawyers, L.L.C., we look forward to helping you.
DFW Criminal Lawyers, L.L.C. serves clients in all of Collin County, including: Frisco, Texas, Plano, Texas, Prosper, Texas, Allen, Texas, McKinney, Texas, Anna, Texas, Wylie, Texas, Fairview, Texas, Melissa, Texas, Murphy, Texas, Celina, Texas, Lucas, Texas, and Hebron, Texas. For cases in Dallas county, please click here.