99 problems, and the bar is one

One of my old roommates during my first year of law school was a big Jay-Z fan, and he and my other roommate (who were dating) would joke that Jay-Z's "99 Problems" was their song.  So I had heard the song plenty of times before I got to my first year criminal law and procedure class, and it came to mind when we were studying probable cause for a search.  Well, last night in bar prep, we were covering criminal procedure, and now that I'm a law school graduate and full time bar exam studier, I see more than just the lack of probable cause issue (although I don't think I've spotted all 99 of the problems, but this is just one part of the song).

The specific part of the song I'm thinking of is:

So I...pull over to the side of the road

I heard "Son do you know what I'm stoppin you for?"

Cause I'm young and I'm black and my hat's real low

Do I look like a mind reader sir, I don't know

Am I under arrest or should I guess some mo'?

"Well you was doin' fifty-five in a fifty four"

"License and registration and step out of the car"

"Are you carrying a weapon on you, I know a lot of you are"

I ain't steppin out of shit, all my paper's legit

"Well do you mind if I look around the car a little bit?"

Well, my glove compartment's locked, so is the trunk and the back

And I know my rights, so you're goin' to need a warrant for that

"Aren't you sharp as a tack, you some type of lawyer or somethin', 

somebody important or somethin'?"

I ain't passed the bar, but I know a little bit,

Enough that you won't illegally search my shit.

"Well we'll see how smart you are when the canine comes."

I got ninety-nine problems......

-Jay-Z, 99 Problems (Def Jam 2003).

First, in the event the officer actually searched the car and found anything that shouldn't be there, Jay-Z's lawyer should file a motion to suppress the evidence.  To have standing to bring a motion to suppress, Jay-Z would need to have a reasonable expectation of privacy in the area searched.  A person has a reduced reasonable expectation of privacy in a car.  

Here, the officer did not have a warrant, so any search and seizure is assumed to be invalid, though there are many exceptions.  

There is the stop and frisk exception, under which police can order the driver out of the car when there is a reasonable, articulable suspicion (which means more than a hunch, but is an easier standard to meet than probable cause) that criminal activity is afoot and this person detained is involved.  Here, going 55 mph in a 54 mph would definitely not amount to probable cause, or a reasonable articulable suspicion for the officer to search.  So, the search is still invalid.

There's also the consent exception, which the officer is trying to employ here.  If Jay-Z said, "Sure, go ahead, search my car," then it doesn't matter that there was no warrant.  Although Jay-Z hasn't passed the bar (something we have in common), he is quite correct that you can withhold consent to a police search of your car.  Police also don't have to tell you that you can withhold consent to the search, so then on occasion, the actual voluntariness of the search can come into question.  Jay-Z did not consent to a search, so this exception isn't going to work for the police either.

The problem with the consent exception is that it then leads to the plain view exception.  Once the officer has established some legal right to search (a warrant, consent, a different exception), any item in plain view can be legally seized.  Since Jay-Z didn't consent, plain view is pretty meaningless, except for the reduced expectation of privacy you have in a car.  

Also, a note on the locked glove compartment, trunk, and back of Jay-Z's car.  Once an officer has probable cause to suspect there's contraband in the car, even though they don't have a warrant, they can lawfully search anywhere in the car consistent with that suspicion, including the trunk, glove compartment, and containers in the trunk, if it is possible that the object they're searching for could be in any of those areas.  However, if you've been stopped and are being patted down (because the police had a reasonable, articulable suspicion that you were involved in criminal activity that's afoot), the police can only frisk outside your clothes and pat you down for weapons.  The officer can't reach in your pockets or look for anything but weapons until s/he has probable cause.  Here, the officer clearly didn't have probable cause to search for contraband, so this would be an invalid, warrantless search if the officer proceeded.

Basically, the officer here would have been much better off doing administrative searches of vehicles.  For the officer to make that a valid, warrantless search, he would have had to stop every car or every third car, but not stop a car on a random hunch (such as the driver being young and black and wearing his hat real low).

The "can't search the trunk" exception only seems to come into play when police are searching you incident to a lawful arrest.  Once you're arrested, the police can search you, and the area in your wingspan, which can include the car, but not the trunk.  This search is typically for an officer's protection and/or to prevent you, the arrestee, from lunging into your car and grabbing and destroying your contraband.

Oh, and canines aren't considered to be a "search" because they're just sniffing your drugs, not actually looking through your bag or your car, so it's not intrusive.  Tricky, huh?

The court would grant Jay-Z's motion to suppress any evidence that was found if the officer proceeded with the search, since it would be the "fruit of the poisonous tree," meaning it was found incident to an unlawful search (although there are exceptions to that too, but I need to go answer contracts questions now).