The Rights of an Individual in Regards to Illegal Search and Seizure
Interviewer: What are an individual’s rights when it comes to illegal search and seizure? What can the police officers do, and what can they not do? Are they aware of this and are people usually acceptable to allow the police officer to search his vehicle?
James Abate: The first thing that gets used is your blood and your urine. There was a case that came down from the United States Supreme Court last year, called McNeely versus Minnesota, which says that, when it comes to obtaining blood evidence, the police must get a warrant. I’ve had already a couple of cases in which I don’t know if the police didn’t know they should get a warrant before, or there was another New Jersey case called State versus Pena Florez, which removed the need to show exigent circumstances to get the warrant.
A Warrant is Necessary to Obtain Blood Evidence in New Jersey
Now the police can just call up a judge, they can say, “I saw this, and this, I think he’s intoxicated,” and the judge will probably issue a warrant to draw their blood. I don’t know why police don’t do this all the time. One of the things happening now is that when you contest that warrant, it doesn’t get heard in the municipal court. It heads up to superior court, and the municipal prosecutor now has to go to another building and handle a case he doesn’t want to handle.
People Almost Always Consent to Vehicle Searches But it is Not Advisable
The first issues are having to do with blood, and whether or not it’s found that that also impinges on urine collection remains to be seen. No one has successfully made that argument yet, that McNeely applies to urine as well, and that police need a warrant to get blood, such that one of the search and seizure is the blood and the urine. The big issue in search and seizure of a vehicle, though, typically comes out to be, do you have to consent to have your vehicle searched. You do not. People almost always do consent to the search of the vehicle, but they really shouldn’t.
New Jersey Laws Provide More Protection than the Federal Constitution
New Jersey provides more protection than the federal constitution does, so that if the police ask to search your vehicle, they have to have a reason. They need to articulate a reasonable suspicion that they’re going to find contraband in your vehicle. That reasonable suspicion can come from things they observe, admissions you make. Pretty much the police would never be able to prosecute anyone if clients just didn’t answer questions, just declined to answer questions. That may make them more suspicious, but at the end of the day the evidence that police have is usually evidence that people create themselves by talking too much.
Do Not Make Any Statements or Consent to Anything in the Absence of an Attorney
You’re probably wondering, well, what happens if the officer thinks there’s drugs there, he can’t do a search of the vehicle, and he comes out and he says, “I still think there’s stuff in there. Okay, you won’t consent to the search, you won’t talk about anything,” and he’ll bring the dogs out. The dogs, the drug-sniffing dogs will come out. It’s like if you’ve ever listened to Jay Z’s Ninety-Nine Problems, his song, that’s exactly what the song is about. In the song, he is telling the officer, I know my rights, I don’t have to let you search my vehicle, I’m not going to admit to anything, I’m going to keep my mouth shut, and I think the famous refrain from the song is that he has ninety-nine problems and a B-I-T-C-H is not one.
People don’t realize that what he was referring to was a drug-sniffing dog. I’ve seen some interviews with him where he says that it actually happened to him. He drove down off the road a little bit after they let him go, and the drug-sniffing dog was busy with someone else’s car. It’s a great criminal procedure analysis in that song. Don’t say anything, don’t consent to anything, and if you have contraband in the car, he’s got to hope the drug-sniffing dogs don’t make it out there, and if they do, then let your lawyer deal with it from that point on.
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