The Fourth Amendment to the United States Constitution, which is part of the Bill of Rights, guards against unreasonable searches and seizures. In general, a search and seizure of a person or his property requires a search warrant based upon probable cause. The search warrant requirement is intended to avoid random/abusive searches by government officials. However, in Michigan, the police are not required to obtain a search warrant and probable cause is not required for property which is in “plain view” or when a person “consents” to a search.
Plain View: Objects which are in plain view of an officer who has a right to be in that position are subject to seizure without a warrant and without probable cause, or his lawful observations may provide grounds for issuance of a search warrant.
Consent Searches: A person who gives a valid consent to a police officer to search his home or vehicle, may be waiving his 4th Amendment rights. The consent must be given voluntarily and courts must determine on the basis of the totality of the circumstances whether consent has been freely given or has been coerced.
I have represented several clients in Macomb County that have said that the police searched closed compartments of a vehicle or in a dwelling and found illegal contraband leading to drug related or stolen property charges. Upon review of the reports, the police will say that the seized property was in plain view or that our client gave consent to search.
Clearly, there is room for abuse by law enforcement authorities to assert that a thing was in plain view or that a party consented to a search in order to avoid inconvenience, delays or situations where there just is not any probable cause to obtain a search warrant. Of concern are situations when a person is alone in his home or vehicle and cannot produce substantiating witnesses to support inappropriate police conduct. For example, the police may pull over a vehicle on a hunch that there are drugs inside. The police may open the vehicle’s closed compartments, such as the trunk or glove box. If the police make a lucky discovery of drugs or stolen property, they may attempt to validate the search under the “plain view” or “consent” exceptions to the search warrant requirement.
Our Macomb County criminal defense lawyers have been able to defeat improper searches if the consent was obtained by threats or coercion or if the traffic stop was random or pretextual. Our position in such situations is that if the initial intrusion is invalid; anything that is seized becomes inadmissible under the “fruit of the poisonous tree” doctrine. The prosecuting attorney has the burden to establish the validity of the intrusion and the voluntariness of the consent by direct and positive evidence.
Video: How to Refuse a Police Search