Every person in Virginia has the Constitutional right to be free of unreasonable searches and seizures. Under the Fourth Amendment, a police officer needs probable cause before they can secure a search warrant to search a person’s body or their home.
Does this mean that the police must have a search warrant before they can seize drugs? Generally, yes. However, the Supreme Court has created many exceptions to this rule, any one of which could come into play in your drug prosecution. Remember, without the drugs, the government will have a hard time getting a conviction, so our Virginia drug crimes attorney examines the facts to determine whether the search was legal. If not, we can move to suppress the evidence.
Consent to Search
Although you have a right to be free of an unreasonable search, it’s also true that you can consent to a search if you choose. This means allowing the police to pat you down, look in your purse or backpack, and search your car or home.
Even more, someone else could consent to a search. For example, your spouse or boyfriend/girlfriend could consent to a search of your home. The police can then use any drugs that they find on the property in the case against you.
Not all consent is valid. For example, you can’t be intimidated into consenting. An officer who points a loaded gun at you is obtaining consent by invalid means. Also, the officer must reasonably believe the person who gives consent is authorized to do so. Your neighbor cannot consent to have your home searched.
A Search Tied to an Arrest
When officers arrest you, they have a right to pat down the arrestee to search for a weapon. If they find drugs while patting you down, they can seize them and use them in a criminal prosecution. They can also search the area in the arrestee’s immediate control.
Importantly, the police cannot search for drugs. The purpose of the search is to protect the safety of the officers and others during the arrest. Nevertheless, they can seize whatever they find, including drugs.
Drugs in Plain View
Sometimes drugs are in plain view. For example, an officer could have stopped you for failing to use a turn signal. If you have marijuana or cocaine sitting on the dash or on your lap, then the officer can see it. He can seize the drugs.
The plain view doctrine does not give police a license to enter any property they choose and then claim drugs are in plain view. Officers need to legally be wherever they were standing when they saw the drugs. An officer who jumps a fence and then sees your marijuana plants in an outbuilding has violated your rights. The officer also cannot move objects to get a better view of whether there are drugs present.
Officers can search a vehicle when making an arrest if they believe one of the following:
- The vehicle contains evidence of the crime they are arresting you for.
- The police believe you can access the car during the arrest.
For example, the police might arrest someone for stealing a television. During the sweep, they also find drugs. Since the police were searching for evidence of the crime, they can use the drugs in a prosecution.
Officers can sometimes perform a search without a search warrant if they believe the circumstances support it. Examples include needing to help someone inside a home or chasing someone suspected of committing a crime. Performing a sweep to protect the safety of officers is another reason. This is a broad exception, and Virginia prosecutors take full advantage.
Fight the Search & Seizure
At Bain Sheldon, we do not automatically assume that the police had valid reasons to search you. Instead, we thoroughly review all evidence and move to suppress evidence if we think the facts support it. Contact us today to schedule a free consultation.