Wednesday, February 24, 2010

The Ends Jusitfy the Means...I Mean Search

I handle a lot of cases that are the result of contraband being found during a vehicle search. Last spring I naively thought Arizona v. Gant put some much needed teeth back into the 4th Amendment.

In less than one year, here in Chicago, Gant is meaningless. As I have written, suddenly everyone is keeping their guns and drugs in plain view. I have been thinking about this a lot lately because of very similar preliminary hearing police officer testimony.

When someone calls me about a case and I know what the charge is, the first thing I ask is "tell me about the arrest." Here is the story I hear all the time.

"I was driving and the police pulled me over. Told me to get out of the car. Searched it and found weed in the glove box, or coke in the console, or maybe a pistol under the driver's seat."

Then I ask, "why were you pulled over?"

"I don't know"

"Did you have a valid driver's license?"


"Were you issued a traffic ticket?"


This scenario isn't universally true. I never realized how many people drive around with no license. In Illinois (at least around here) if you get caught driving with no license, you're getting arrested. Out in DuPage county, I hear they put people in the county jail for 30 days as punishment.

Gant was supposed to prevent what comes next. The vehicle search. But the cops are smart. They still search the car. But now if they find any contraband the search was incident to impound, which is legal. It's called an inventory search and it's a judicially created exception to the search warrant requirement for vehicles.

Inventory searches are done to protect the vehicle owner's property. The cops want to make sure any Rolex watches in the car are inventoried properly and returned to you. That's the story anyway.

Inventory searches are really done to find stuff that puts you in the county jail with a felony arrest. Our jail is a city inside a city, sort of like the Vatican but much less holy. 

But not everyone drives with no license. Some people do, actually, have them. For those folks it's a shame they bought a car that inherently emits a strong odor of marijuana. Some models have a nice burning weed smell but more executive models come with packaged weed smell.

If your car smells like weed it's getting searched. If nothing is found, you get let go. No harm, no foul. You will probably just be grateful a run-in with the police didn't end up with you being sent to county. Phew!

But, if something is found, well your car smells like weed and it's your fault.

In all seriousness, the cops around here pull people out of their car and search it as a matter of course. And as stated, if nothing is found, you get let go. But, if something is found chances are you were stupid enough to leave it in plain view or your car smells like Cheech and Chong camped inside of it.

Now here is where it gets plain stupid. $20 bags of crack and heroin are found in cars hourly. Let's say it's your car and you were the only person in it. What's going to happen?

The car is getting impounded and you're going to the county jail. 2-3 weeks later you will have your preliminary hearing and the judge will find no probable cause because of the small amount of drugs found. That night you will get out of jail.

If you had any cash on you when arrested, you're never getting that back. That's gone. It was drug money. Forget it.

And to add insult to injury, it's going to cost you over $1,000 to get your car back.

As you can imagine, a lot of cars are never retrieved. I often wonder what's done with them. Can you go, just get the rims and leave the car for say, $300? How about the stereo? The sub-woofer in the trunk? $5 to get my fuzzy dice, please sir?

It gets interesting when someone is arrested and it's not their car. Your girlfriend has only $1,000. Question: is she going to use that money to (a) bond you out, or (b) get her car out of impound so she can get to work?

Forget about. You're eating jailhouse bologna sandwiches for a couple of weeks. And your girl is finding a new man. One that won't smoke weed while driving her car.


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