September 30, 2022
An illegal search in New Jersey occurs when a police officer searches the car, the home, or the person of someone without their consent or the appropriate search warrant. Among the most common incidences of illegal searches are DWI searches where the driver is stopped because of suspicion of impaired driving.
If the police really want to search a car or a person, then why don’t they get a proper search warrant? It’s often because they realize they lack the probable cause the judge would require to give them that search warrant. Instead, they try to get the person to sign a consent to search form.
Needless to say, you should not sign that consent form if you want to protect your 4th amendment rights. On the other hand, not all is lost, though you do have to find an experienced criminal defense lawyer who can prove that the search of your car was illegal and that the evidence should be thrown out.
Simple traffic stops, including DWI stops, can easily result in illegal searches:
In order to be allowed to even ask to search a person or a car, the officer must have what’s called “probable cause,” that is some evidence or a strong suspicion that the person has been involved in some kind of criminal activity or was planning such an activity. This is not normally the case during a DWI stop or a stop for a broken tail light. And if it is not, the police is not permitted to ask the driver to consent to a search.
As stated above, not only is asking for consent to a search and getting that consent not enough to justify the search. It is also not always legal to even ask, except under certain circumstances.
When a person is stopped for a traffic violation, the officer is supposed to investigate the violation, write the appropriate ticket, and let the driver go. The driver is usually intimidated enough by the traffic stop, and may be afraid to refuse his consent to a search, especially if the officer does not tell him that he has the right to refuse.
This sort of thing had been happening a lot in New Jersey, especially with many racial profiling cases. Fortunately, the New Jersey Supreme Court, in its decision on State v Carty, made it illegal for the police to ask for a search after stopping someone for breaking a motor vehicle law, such as speeding, making an illegal turn, or driving with a broken tail light.
Even if they were to find something incriminating, such as drugs, they would not be able to use them as evidence. In fact, if the drugs were discovered during an illegal search, that evidence would be thrown out in court.
So when can the police ask to do a search or get a search warrant? They can only do so if they have a reasonable suspicion that the driver is or has been involved in a criminal activity. And their reasoning cannot be that the driver somehow looked suspicious. Instead, they need to be able to articulate their reasoning for why the driver was suspicious. If he or she seemed nervous, that’s not a reason that would justify a search.
However, there is actually a whole list of reasons that could justify a search. These reasons could include some suspicious object that is in plain sight, such as drug paraphernalia on the passenger seat, an observed criminal activity involving a car that looks like yours, and many others.
The search could also take place in an area where no constitutional right to privacy exists, such as on an abandoned property. It also could be justified if a person is in danger, or if the officer fears for his or her own safety.
When the police ask you to stop and identify yourself, it can feel quite intimidating. You should still comply. If they are looking for someone who looks a bit like you, they usually figure it out quickly. In either case, you should probably talk to a criminal defense attorney right away, just in case.
There is another possibility for a stop and identify order. That is when the police are serving a summons, which is an official demand to appear in court. When serving such a summons, the police must make sure they hand it to the right person, which makes it necessary to identify the potential recipient of the summons.
So what should you do if you are stopped and asked to identify yourself to the police? You should cooperate and identify yourself. However, you should not answer any questions. Not identifying yourself could interfere with a police investigation, and that in itself could be a crime and get you into real trouble. So just identify yourself.
If you have been subjected to an illegal search by the New Jersey police, you should get in touch with an experienced illegal search and seizure attorney immediately. We have that experience and have helped hundreds of clients beat their charges.
We stay up-to-date with any new rulings and any new enforcement techniques that law enforcement agencies come up with. Call or text us for a free consultation or request a free in-depth case evaluation on our website. We’ll be happy to help you.
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