Searches and Seizures

Personal Searches

A police officer cannot search an individual without their consent if they do not have a legal basis for the search. An officer is permitted to conduct a “pat down search,” in which they stop an individual on the street if they have reasonable suspicion to search and feel for contraband or any items that can obstruct the safety of the officer. An individual is not required to tell the police officer if they are carrying anything in their pockets if asked, and an individual is not required to take anything outside of their pockets for the officer. 

Vehicle Searches

If an individual is pulled over by a police officer for a traffic stop, the officer may ask to search the vehicle. In this case, an individual is permitted to refuse consent. An officer can only conduct a search without consent if they have a warrant, smell or see something that grants them probable cause to search the vehicle, or can conduct an arrest for another cause.

If a police officer identifies contraband in the vehicle and has probable cause to believe an individual may be committing a crime by possessing the item, the officer is permitted to search the vehicle for evidence. 

Refusing a Search

Police officers conduct searches to gather information and evidence to attest that an individual committed a crime. Thus, they may not always inform individuals that they have the right to refuse consent to a search. Recent laws have made evidence gathered during illegal searches impermissible in a court of law. Further, if an officer conducts an unlawful search in the absence of an individual’s consent, an individual should remain calm and proceed with the search. Later, an attorney will ensure the unlawful search and any evidence garnered during it are dismissed and handled appropriately. 

An individual should always ask the police officer if they are under arrest or if the officer has a warrant to permit a search. Unless either is true, an individual does not have to consent to a search.

What Can Be Searched and Seized?

A warrant can be issued to search for specific objects, people, or places. Further, a warrant may be issued to seize the following according to 19.2-53 in the Code of Virginia:

1. Weapons or other objects used in the commission of crime

2. Objects that are unlawful to possess or sell

3. Stolen property or “fruits of any crime”

4. Any object or person, which includes without limitation documents, books, papers, records, or bodily fluids that constitute evidence of the commission of a crime

5. Any person to be arrested for whom a warrant or process for arrest has been issued

Rights Against Unlawful Searches and Seizures (virginia)

Under the fourth amendment, police officers are not permitted to search vehicles, homes, businesses, or persons without establishing probable cause and/or attaining a search warrant signed by a judge. This law does not apply to private security guards.

The right against unlawful search and seizure only applies when an individual has a “reasonable expectation of privacy.” Courts use two criteria to assess the validity of this expectation:

1. “Did you actually expect privacy?”

2. “Is the expectation of privacy reasonable by our society’s standards?”

When Can the Police Stop You and Conduct a Pat Down?

While an officer has the right to briefly detain an individual if, based on their experience and training, they have reasonable suspicion that criminal activity is occurring, they are prohibited from searching an individual unless they consent or there is a legitimate purpose. A police officer may have a legitimate purpose for a search, for instance, if they have reasonable suspicion that an individual is armed.

When Can the Police Search Your Vehicle?

According to the Code of Virginia, “no officer of the law or any other person shall search any place, thing or person, except by virtue of and under a warrant issued by a proper officer” or with an individual’s consent to search. However, an individual does not have to agree to the search, and it is often in their best interest to not participate in one. Additionally, according to 4.1-1302 in the Code of Virginia, law enforcement officers may stop, search, or seize any person, place, or thing on the basis of the odor of marijuana in any airport or commercial motor vehicle. 

When Is a Search or Seizure Allowed without A Warrant?

An officer may conduct a search without a warrant if they are arresting an individual. 

Additionally, police may search an individual or their property if they receive consent; any evidence found during this search may be used against an individual. 

An individual does not have a reasonable expectation of privacy under the law if their property is in plain view. Thus, an officer is permitted to conduct a search and seize the property if it is deemed relevant to a crime. 

Finally, an officer has the right to search an individual during a traffic stop if there is probable cause to suspect the possession of contraband or property obtained in a crime.

What Happens when Evidence Is Obtained in An Unlawful Search and Seizure?

Under the exclusionary rule and the "fruit of the poisonous tree" doctrine, a prosecutor or police officer is prohibited from using evidence garnered in an unlawful search and seizure.