Frequently Asked Questions

Arrest, Search & Seizure

Q. If the police ask to search my car, what should I do?

A. You are never required to consent to a search of your vehicle. Of course, a police officer is not obligated to advise you that you have the right to refuse consent to search. The only rights the police must advise you of are your Miranda rights, which will be discussed below. You must be aware of your Fourth Amendment rights and take the appropriate measures to invoke them when confronted by law enforcement.

If you do not wish to consent to a search of your vehicle, you should make two things clear to the officer. First, that you do not consent to a search of your vehicle, and second that you will not physically obstruct him if he believes that he has probable cause. This is so because even if you refuse consent to search the officer might search anyway. If the officer searches your car without your consent he will have to justify to a judge why he thought he had probable cause to search in the event contraband is discovered. If you are charged with a crime based upon items seized from the car, your lawyer may be able to challenge the admissibility of this evidence with a suppression motion. Had you consented to the search then this potentially valuable defensive strategy would not be available to you.

Q. When the officer arrested me he forgot to read me my rights. Does this mean I can get the charges thrown out automatically?

A. No. The Miranda warnings are only required to be given if the police question you while in custody. Statements made to law enforcement during a custodial interrogation are not admissible unless the suspect was first read his Miranda rights.

The police are not required to Mirandize you unless you are in custody. For example, if a police officer calls you on the telephone and you make incriminating statements you cannot have those statements excluded from evidence for failure to give Miranda warnings because you were not in custody at the time you made the statement. Custody in this sense does not necessarily mean a formal arrest. It simply means a situation in which your freedom of movement is being restricted by the police. This is why you should always ask a police officer if you are free to leave. If he says yes, then leave. If he says no, then the next words out of your mouth should be "I want a lawyer." After you invoke your right to counsel the police may not legally question you further.

Even if a statement was taken from you in violation of Miranda this does not mean that the charges will be thrown out. It simply means that your statement will not be admissible. The prosecution may have other evidence which may be sufficient to prove you guilty.

Q. Can I demand to know whether or not I am under arrest?

A. Yes. However, there are other circumstances under which a police officer may legally detain you without arresting you. It is better to ask whether or not you are free to leave. If the officer says yes, then leave. If he says no, then the next words out of your mouth should be "I want a lawyer." After you invoke your right to counsel the police may not legally question you further.

Once you are arrested you may demand to know what charges you are being detained for.

Q. Do the police need a search warrant to search a vehicle?

A. Rarely. The law in this area is rather complicated, but generally most automobile searches are upheld without a warrant. If no consent is given to search the vehicle, the police will have to establish at a minimum that they had probable cause to search.

Q. Do the police need a search warrant to search a private residence?

A. Almost always, yes. Again, Fourth Amendment law is very complicated and peppered with exceptions and exceptions to exceptions, but as a general rule the police usually need a warrant to search a private residence unless consent is given. The home is one of the few places which enjoys meaningful protection by the Fourth Amendment.

Q. How do police establish probable cause to search a vehicle?

A. Some of the more common methods are tips from "snitch" informants, a visible inspection of the interior of the car through the windows, incriminating statements made by recent occupants of the vehicle, and the notorious "I smell pot" exception to the Fourth Amendment’s warrant requirement.

Q. Can the police order me to empty the contents of my pockets or my handbag if they don’t have a search warrant?

A. Not unless (1) you are actually under arrest or (2) the police have frisked your clothing and found what appears to be a weapon. If you have not been frisked, you may lawfully refuse such a request by the police if you are not already under arrest.

Q. What should I do if the police threaten to arrest me if I don’t comply with their request for permission to search?

A. A police officer who makes such a threat is violating the law and should not be trusted. In all likelihood he will arrest you anyway. Do not give your consent to search. If he arrests you, make him justify his actions in court.

Q. Do the police have the right to "frisk" or pat down the exterior clothing of anyone they want?

A. No. Before the police have a right to "stop and frisk" a suspect they must have a reasonable suspicion of criminal activity. Even if you doubt that the officer has such a reasonable suspicion, you should never physically obstruct or resist a police officer’s efforts in this regard. Even if you pose no threat to the police, any physical resistance will be interpreted as a threat and the police will then be entitled to use "reasonable force" to subdue you. The reasonableness of the force used will be viewed by a court from the police officer’s perspective and not yours.

By the same token, you are not required to give your verbal consent. In the absence of such consent, the police may be required to justify their actions later in court. The distinction here is between submission to lawful authority and consent to search. You are always required to do the former; you are never required to do the latter.

Q. Under what circumstances may I legally resist arrest?

A. Very, very few. In theory Virginia law permits a citizen to use reasonable force to resist an unlawful arrest under some circumstances. In practice most judges will almost always be more sympathetic to the perspective of the police officer. There will almost certainly be a discrepancy between your version of the events and the police officer’s. Judges and juries in Virginia are heavily inclined to believe the police officer over the word of the suspect.

Physically resisting arrest is never recommended. If you wish to challenge the authority of the police you may exercise your right to remain silent, you may refuse consent to search, and your attorney may challenge the admissibility of evidence in court by use of the appropriate legal procedures.

Q. The police seized my car and a large amount of cash from me after finding drugs. Will I ever get my property back?

A. Many law enforcement agencies are aggressively taking advantage of "asset forfeiture" laws which permit them to seize property, including cash and other assets, which are derived from illegal drug transactions. Such actions are often taken when someone is caught with drugs and a large amount of cash on or near their person. The procedures for obtaining the return of property seized under asset forfeiture laws are complicated and are not designed for the convenience of the property owner. This is true even if the property taken from you was not derived from illegal activity. Anyone confronted with this situation should immediately consult with an attorney experienced in these matters.

Feel free to contact me at inquiry@brianjgrossman.com.