Car privacy is an illusion says Fairfax criminal lawyer

Car privacy (CP) is an oxymoron in Virginia. As a Fairfax criminal lawyer, I know that you can be a sitting duck for police if they pursue a fishing trip or worse against you in a motor vehicle that contains contraband or otherwise has evidence of a crime, including evidence of driving under the influence of beer, wine, alcohol or drugs in violation of Virginia Code § 18.2-266. The reasons why CP is barely existent are many, including: Your vehicle is eventually going to come to a stop, making it ripe for police (and even their drug sniffing dogs) to approach that vehicle. The Virginia and federal appellate courts do not require a search warrant — not even with closed containers (Alvarez v. Commonwealth of Virginia, 24 Va.App. 768 (1997) and California v. Acevedo, 500 U.S. 565 (1991) — when police have probable cause to search the vehicle. Police are permitted to order every occupant out of the vehicle when making a lawful motor vehicle stop (Mimms v. Pa., 434 U.S. 106 (1977), which stop requires no more than reasonable articulable suspicion to believe that the driver has committed a moving violation or that evidence of criminal activity is inside the automobile. Moreover, non-owner passengers of a stopped vehicle may challenge the stop of the automobile, but have much more narrow reasonable expectation of privacy as to any vehicle search to have standing to make such a challenge in court. If all of that was not bad enough, do not expect police to do anything other than arresting everyone in a vehicle in which illegal drugs or other contraband is found, unless satisfied that not all occupants individually or jointly possessed the contraband.

Must I decline suspicious passengers and suspicious drivers, in the light of limited car privacy with Virginia police?

Let the foregoing paragraph be your wakeup call with car privacy, to be careful about whose motor vehicle you borrow, whom you let into the motor vehicle you drive, and whom you accept rides from. Police generally are more interested in letting you “tell it to the judge” or to the jury, than to parse out whether the cocaine found in the vehicle you borrowed was left there by the owner or someone else, and whether the knife in the front console container is possessed by the driver, a passenger, or both. That alone is a reason to beware giving a ride to a hitchhiker nor any other stranger, and to beware hitchhiking, as only a for instance. Know that contraband can fall out of a passenger’s pocket, only to be found by police when you are the vehicle’s sole occupant. This warning about being near other people’s contraband extends beyond motor vehicles to all aspects of your life. Exercise caution about whom you allow into your home and hotel room, and whose homes and hotel rooms you visit. Be careful even about whom you associate with on the street. This is not mean to inject you with paranoia but to assure yourself that you maintain a healthy balance of vigilance in your daily life.

What do I have to hide if a police officer asks me to permit a law enforcement officer (LEO) search of my motor vehicle?

Better safe than sorry in life and with car privacy. Anytime you waive your Fourth Amendment right verbally to refuse to consent to police searches, you are setting yourself potentially to be sorry. Even if you think you are the sole person who ever enters your vehicle, what about your auto mechanic, car wash employees, and valet parkers? What if you walk on crumbs of cocaine left on the street? What if you accidentally grab the wrong jacket upon leaving a restaurant, one that looks just like yours, except that it has illegal drugs / controlled substances or other contraband inside? You may not physically interfere with a police search — even an unlawful one — but you are within your full legal right to say no to any police searches of your vehicle, yourself, your clothes, your home, or any other property over which you have any ownership or custodial interest.

Do I have the right to consult with a lawyer before deciding to speak with police or before deciding whether to consent to a search?

You can demand or ask for a lawyer until you are blue in the face with LEO as to car privacy or anything else. At the end of the day, whether and when you are granted access to a lawyer by the police, it is an easy matter of politely saying “no” in asserting your Constitutional Fifth Amendment right to remain silent with police, Fourth Amendment right to decline a search, and Sixth Amendment right to an attorney. When you watch the YouTube video shown on this website’s landing page, you will know the simple and non-escalating way to do this, including: “I decline any searches” (be careful about saying “I do not consent to a search” lest that be mis-heard as “I consent to a search”); ” I am not talking” or “I am not answering questions”; and “I want a lawyer.” The following one may drive police sincerely or pretendingly irritated, but can be effective when asked to submit to a search: “No, thank you.” The same foregoing approach can be used in declining field testing and pre-arrest voluntary preliminary breath alcohol testing when a Virginia DWI suspect (as opposed to mandatory post-arrest breath testing in DUI cases), including “No, thank you.” Taking the foregoing approaches can help you look innocent, kind, and non-bombastic on the video camera that is probably running throughout your police encounter .

How do I avoid spending every waking hour worried about police stops and arrests when police are constantly on the prowl for suspects?

Live your life to its lawful fullest, without letting car privacy or other police encounter issues put a damper on how you go through the day. If you avoid committing any crimes nor being near evidence of a crime, your risks from the police are limited accordingly. However, we humans being social animals, we are going to daily interact with a wide variety of people. Be vigilant without being paranoid. Do not get upset when police approach you, but beware waiving your Constitutional rights to decline police searches, to assert your right to remain silent, and to assert your right to a lawyer. Police are supposed to be here to serve us, and not the opposite. In that vein, enjoy your life but remember the presence of police.

Fairfax criminal lawyer Jonathan Katz’s devotion to and defense of people’s civil liberties an individual rights drives him all the more to deliver the best possible defense to Virginia DUI, felony and misdemeanor prosecutions. You will know the same by the time you finish your free initial confidential in-person consultation with Jon Katz through an in-person meeting scheduled at 703-383-1100. Jon usually can meet with you either the same day or the next day after you call.