Plainsman1963

Police need cause to search motorists' cars
What's lawful? » Hunches and intuition aren't enough for a once-over.
01-04-2009 | SLTrib.Com | Pamela Manson

Sherida Felders admits she was speeding as she traveled on Interstate 15 in November, but says the search by a Utah Highway Patrol officer of her Jeep Commander for drugs was based on racial profiling.

A lawsuit filed by Felders and her two teenage passengers, all blacks, over their alleged 2½-hour roadside detention raises the question of when police can lawfully search a vehicle without a warrant.

Two Salt Lake City attorneys who are not involved in the case said law-enforcement officers must have a reason to believe a crime has occurred before they can do more than issue a ticket.

Civil-rights lawyer Brian Barnard said a stop has to be justified in the first place, meaning officers must have a reasonable suspicion that a driver is committing a traffic offense. Once the initial purpose for a stop is concluded -- for example, a traffic citation has been written -- the motorist must be allowed to depart unless the officer has probable cause to suspect other illegal activity, such as spotting a gun inside the car, he said.

"Police cannot stop or search people based on a hunch or intuition," he said.

If an officer sees an illegal item in plain view, such as marijuana or an open container of liquor in the passenger compartment, the officer can seize the item, Barnard said. But absent some illegal conduct or circumstances, that would not justify a search of the entire vehicle without a warrant, he said.

A vehicle can be searched with permission of the driver, but the consent must be freely given.

"Telling the person, 'We'll wait here at the side of the road with you in handcuffs in the winter snow for two hours until I can get a warrant or you can voluntarily consent' does not result in voluntary consent," Barnard said.

Clayton Simms, a criminal defense attorney, said police must focus on the crime that led to the stop in the first place. If other evidence surfaces after a stop, such as the smell of alcohol on the driver's breath, officers can put the motorist through sobriety tests, he said.

"You can't just stop a person for Activity A and then start searching the car for Crime B unless you have evidence of that," Simms said.

He said whether a stop exceeds its scope depends on a number of factors, such as the reason for stopping the driver, the length of the detention, the extent of the search and the number of officers involved.