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October 30 2013
October 14 2013
Search and Seizure in Michigan
Knowing how to successfully defend against illegal searches is what separates a good defense attorney from a great one. Throughout Michigan, we tenaciously defend our clients' rights against unlawful searches. We will do this throughout Michigan, including cities like Detroit, Farmington Hills, Ann Arbor, Lansing, and Grand Rapids.
You have probably heard the term “search and seizure.” What you may not know is that these are actually two very distinct legal concepts. You have a right against unreasonable search and seizures that is provided to you by the Fourth Amendment of the United States Constitution.
A “seizure” is when the police briefly detain you to determine if you are doing something illegal. This is sometimes called a Terry Stop. In order to briefly seize you, the police officers must have reasonable suspicion to believe that you are doing something illegal. Then, in order to actually arrest you, the officer must have probable cause to believe that you are doing something illegal. Probable cause is a much higher standard to meet than reasonable suspicion.
A “search” is when the officers look through your home, vehicle, or body to attempt to find evidence of your suspected illegal activity. In most cases, the police must have a search warrant that is based on probable cause of criminal activity and has been granted to them by a neutral judge or magistrate. However, as with everything, there are multiple exceptions to the search warrant requirement for a search of your home, vehicle, or body:
The first exception is Consent. Many times, police officers will show up without the required warrant and ask to enter your home, vehicle, or clothing. Because people are scared of the police, they allow the officers to enter, which often leads to the officer finding criminal activity inside and then criminal charges. If the officer asks if he or she can conduct a search of your house, vehicle, or body, politely assert your right not to consent to the search. You do not have to consent to a police search! Unfortunately, the police do not have to advise you that you have the right to refuse consent; therefore, you need to actively assert that right.
A second exception to the police’s search warrant requirement is a Search Incident to Arrest (SIA). If the police arrest you, they have the right to search the area for weapons and other people who could cause the officers harm. This is usually called a “Wingspan” search.
The third exception deals only with vehicles. It is called the Automobile Exception. Your rights when it comes to the police conducting a warrantless search of your vehicle on the side of the road are almost non-existent.
The fourth warrant exception is the Administrative Search. This usually deals with vehicles, as well. Let’s say a defendant was arrested for having drugs in his or her vehicle. Many times, the police will have the vehicle towed to the station and they will go through the vehicle piece-by-piece to see if there are any more drugs involved.
A fifth exception to the warrant requirement is the Plain Smell/Plain View exception. If an officer is standing somewhere legally, and sees or smells something that would indicate there is a probable cause of criminal activity, the officer can investigate further without having a warrant. So, if a police officer is walking by your home and sees you inside smoking a crack pipe, the officer can enter your home with no warrant.
The last major exception to the search warrant requirement is the Exigent Circumstances exception. There are a few parts to this exception. First, if an officer is pursuing a fleeing felon, and the felon enters a home or vehicle, the officer may also enter the home or vehicle without a warrant. Second, if the officer needs to administer emergency aid, he or she may enter the home or vehicle without a warrant. Third, if the officer reasonably believes there is destruction of evidence occurring in the home or vehicle, he or she may enter the home or vehicle. The United States Supreme Court recently clarified this third part of the exigent circumstances exception to the search warrant requirement in the case of Kentucky v. King. In that case, police stood outside an apartment and smelled marijuana. They announced their presence and then heard what they believed to be the destruction of drugs occurring inside. The Supreme Court held that this was a permissible warrantless search, so long as the officers behaved reasonably.
Be calm and courteous. If a police officer in Michigan pulls you over for a traffic stop or comes knocking at your front door, the first thing to remember is to try to remain as relaxed and polite as possible. Police know that their mere presence is intimidating to most people and that people often react to this feeling of intimidation by either (1) saying things that are not in their best interests, or (2) acting in ways that the police might interpret as disrespectful. Both of these reactions will just get you in more trouble even if you have not done anything illegal. Stay calm, be polite and respectful, but do not be intimidated by the police.
If the police have a search warrant, exercise your right to see it. A search warrant needs to be specific. Read the warrant carefully. Notice whether the warrant lists the correct address of the place to be searched (if it is a building), and if it is signed by a magistrate or judge. The absence of either of these details makes the warrant invalid and the police cannot conduct the search. Also, notice what areas the warrant says may be searched, and notice if the police search areas not covered by the warrant. If police search areas not mentioned in the signed warrant, they are conducting an illegal search. However, that is not a discussion you should have with the police. That discussion is between you and your attorney. You will almost always lose an argument with a police officer in the field. We'll handle that problem for you in a courtroom.
Remember, do not consent to the search. As stated above, police officers can get around the search warrant requirement if you consent to their search of your home, vehicle, or body. If the officer asks if he or she can conduct a search of your person or of your car or house, politely assert your right not to consent to the search. You should politely tell them calmly and firmly, "I respectfully refuse to consent to a search." Do not let police bully you into consenting. Often, they will indicate that if you did not have anything to hide, then you would not be refusing to consent. Just repeat that you are respectfully refusing to consent to a search. That's your right in the state of Michigan and in the United States. You should contact us as soon as possible to protect your rights. We can be reached confidentially at 1-866-766-5245.
At this point, the police will often reply that they can get a warrant anyway, so therefore you should just go ahead and consent. But remember: the police cannot just get a warrant because they want to. They need specific, probable cause to do so and they need to be able to convince the judge about their probable cause for needing a warrant. Therefore, they should be able to explain it to you. Probable cause to search is defined as facts that would lead a reasonably cautious person to believe that evidence of a crime will be found in the stated place. Politely tell the officers that if they plan on requesting a search warrant, then you would like to know specifically what they are searching for and why they think they have probable cause. Keep in mind that your refusal to consent to a search does not, by itself, give the police probable cause.
Contact an experienced attorney as soon as possible. Perhaps the most important opportunity you have to protect your Constitutional rights is when you are confronted by the police without an attorney present. You may not even have done anything illegal. At the moment the police are with you, and you do not have experienced legal counsel by your side, you are at your most vulnerable. The police know this and are likely to try and get you to say something incriminating or to get you to submit to a search.
It is clearly in your best interests to contact an experienced, trusted attorney as soon as possible after the police ask to conduct a search. If you can avoid it, do not wait until the search is conducted before contacting one of our attorneys. For example, if you refuse consent to a search, and the police must wait for the issuance of a search warrant, you may have time to contact an attorney. The attorney would then have the opportunity to arrive at your location prior to a search. In any event, you want your legal representative to be notified and involved as quickly as possible to make sure that your Fourth Amendment rights are protected. We can be reached at 1-866-766-5245 and our phones are answered 24/7.
Contact us today! We offer free initial consultations! Our number is (866) 766-5245.
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