Lt. Dave Swords on Search and Seizure – Part 2

Lt. Dave Swords

The Graveyard Shift welcomes back special guest expert Lieutenant David Swords (ret.) of the Springfield, Ohio Police Department. Today, Lt. Swords continues his discussion on Search and Seizure.

Vehicle searches

Here is one exception to the Fourth Amendment’s prohibition against warrantless searches and seizures that has seen a lot of daylight in the courts. Several things tend to set vehicle searches apart from searches of homes or buildings. One is the “exigent circumstances” under which officers may find themselves when confronted with the decision to search or not search a motor vehicle. In other words, something must be done now, or, because of the car’s mobility, any contraband/evidence may get away if an officer waits to get a warrant.

An officer conducts a vehicle search.

Another factor that the courts have cited in vehicle searches is the lesser “expectation of privacy” that a person has in a vehicle operating on public roads, than in their home or place of business. Finally, courts usually extend a “stop and frisk” type attitude to any part of the passenger compartment of a vehicle that a driver or passenger can reach.

Officers may search the area immediately accessible by the driver of a vehicle.

Of course, the officer still needs to be able to articulate probable cause. There it is again, that phrase that is so important to what a law officer does day in and day out.

Inventory Searches

An inventory search is the search of a vehicle that has been impounded. In other words, it has been seized or towed to police headquarters, or an impound lot, for reasons ranging from involvement in a crime to overtime parking. Inventories are often taken of items found in vehicles, both for the security of the impound facility and the safety of the property of the vehicle owner. The courts have generally held that inventories can be made of such vehicles, and any evidence found is admissible in court, as long as it is done with every impounded vehicle, and not just when police may have a special interest in a particular car.

Officers cannot pick-and-choose which impounded vehicles to search. Either all vehicles are searched, or none.

And what happens if an officer conducts what the court may later determine is an illegal search? According to the exclusionary rule the courts have adopted, no evidence obtained in an illegal search is admissible in court. However, recent rulings have dictated that if it can be established that officers honestly believed they had probable cause, the evidence may be admissible.

Officers must effectively articulate their justification for probable cause.

Pretty clear, huh? You can imagine how confusing it can get for an officer at times, especially when an officer stops a car with four individuals at three in the morning on a dark street and it’s time to make decisions that other people will have hours to dissect from the safety of their offices.

Officers have to make split-second decisions without advice of counsel.

Officers should always put safety first.

Search and seizure laws are complicated and can be confusing. Confusing to the police officer, but a gold mine for the crime writer. As you can well guess, one minor detail can completely change the complexity of a case. Sometimes, cases can hinge on that one piece of evidence that is inadmissible in court because of the exclusionary rule. When that happens, the bad guy in your novel can “get off” on that technicality, which puts him back on the street and your detectives pulling their hair out and looking for ways to right the wrong. And from there, let the creative juices flow!

An overlooked detail can cause investigators to feel like pulling out their hair.

*The Graveyard Shift extends its thanks to the Lt. Dave Swords for taking the time to be with us this week. We hope you’ll come back, soon. Enjoy all the snow shoveling, Dave. We also thank the FBI for use of the photos in today blog. Britney’s photo was just out there for all to see, so we borrowed it.

*Tomorrow – Blood evidence

24 replies
  1. Lee Lofland
    Lee Lofland says:

    Elena – If officers were allowed to pick and choose which cars they searched under the inventory “rule” they’d be subjected to tons of profiling lawsuits. Therefore, it’s all or nothing.

  2. Lee Lofland
    Lee Lofland says:

    Again, Peg, the circumstances you’re speaking of was an emergency-type situation. Still, drivers don’t have the “right” to pull over wherever they please. This was something the local police allowed them to do so they’d be safe. I applaud your local police for using common sense.

  3. Elena
    Elena says:

    The situation I was in was well before CB’s much less cell phones, and given the speed with which the gentleman left along with his reluctance to come in further than the doorway, I always suspected he wasn’t really a police officer.

    Later, the area north of Atlanta had a nightmare problem with a man who had actually bought an old police car at auction, fixed it up with fake insignia and working lights, got himself a uniform, and preyed on women drivers alone at night. They finally got him, but it was plenty scary – especially since I had to drive through part of that area after dark going home from an evening class I taught.

    In general I would be inclined to stop if an officer wanted me to. Even if I didn’t think I had done anything, there could be something ahead that s/he wanted to warn me about.

    I’m still mulling over the possibilities around impounded cars – either all searched or not. Interesting!

  4. Peg H
    Peg H says:

    Last year we had a violent rapist in our area who posed as a plain clothes police officer. Announcements were made to the public that if any unmarked car with a light bar or just a flashing blue or red dash light, tried to pull a woman over she was to drive to the nearest populated, well lit place she could find, preferably the nearest police station. They stressed that she NOT pull over until she got to a safe area. If she had a phone she was to call 911 immediately, inform the dispatcher of her location and where she planned to stop.

    All the cops I know were hot to catch him, especially when they thought of their own wives, mothers, and sisters… they never did nab him and think he’s moved on to another area.

    Ladies, stay safe, use your heads, and always, always be aware of your surroundings!

    Peg H

  5. Lee Lofland
    Lee Lofland says:

    Mo – Drivers don’t have the “right” to drive to a well-lit area. Perhaps the Montgomery police allow drivers the option to do so because they’ve had a problem in their area with people posing as police officers.

    I certainly wouldn’t assume you had that right if you’re driving in some rural county in, say, Virginia. You just might find yourself getting run off the road by an overzealous deputy sheriff. You also might find yourself charged with attempting to elude police – something those county police officers take seriously. I know because once upon a time I was one. Of course, in those days you could trust everyone.

  6. D. Swords
    D. Swords says:

    Hi, Alias Mo.

    If officers are searching for a suspect, and happened across something of evidentiary value, that would probably prove to be admissalbe under plain view. Remember, if they have a legal right to be where they are, what they see is admissable under the plain view doctrine. And no, they would not be able to look in a drawer if hunting for a person.

    The reason officers can search for a suspect is for safety issues. In other words, an armed person may be on the premises and should be taken into custody and disarmed. If someone had told them the suspect fled, they could not then search with the “excuse” that they were looking for a suspect.

    Even if the owner is dead, someone still owns or has charge of the property (next of kin, for instance) I don’t believe the death of the owner would make any difference. If the car owner is dead, the car is going no where, so there are no exigent circumstances. Generally, on a homicide, if there is any doubt about searching, police will get a warrant.

    Good points on stopping for the police.

  7. Alias Mo
    Alias Mo says:

    Great information, thanks!

    Question about searches at an established crime scene. I believe officers can search for a perpetrator who may still be on the scene? Is anything they then find under a bed or in a closet admissible? Do they need a warrant to search inside anything that wouldn’t hold a person? Does it matter if the property owner (car or dwelling) is a homicide victim?

    Also, had to follow through on what I thought I’d been told about safety and police stops. First Google search on “traffic stop woman safe” turned up an article from the DC area about two cop impersonators/purse snatchers. The URL is I’ve pasted the safety advice below. I’ve also been advised to turn on hazard flashers to acknowledge the police lights, then drive slowly to a well-lit, populated area, business, etc.

    “Montgomery County police are reminding citizens that if an officer initiates a traffic stop, particularly an officer in street clothes or a questionable-looking vehicle, drivers have the right to drive slowly to a well-lighted, open area before stopping.

    Officials said all police carry photo identification with their badges and must display them if asked.

    Police said they encourage citizens to ask for ID, since anyone can purchase new or used badges off the Internet.

    While officers will not allow drivers to hold their ID card, drivers can see the name, photo and rank and call dispatch to verify the officer’s identity.”

  8. D. Swords
    D. Swords says:


    I don’t think offices mind whether you pull to the right or left. I would think it would depend on where you are. In other words, if you’re drifing in the left hand land of a three land highway, I’d say pull to the left. As for heading to the exit, I would think that you should stop at the first, safest, most convenient place. I definitely think you should not stop on a curved exit ramp.

    Then again, I was not a highway patrol officer, so I don’t know if such officers would have a preference.

    Any State Troppers out there to weigh in?

    As for illegal items in the trunk, a lot would hinge upon who the car owner is, why the car was stopped, what drew the police to search the trunk, etc.

    Remember, to make an arrest, an officer must have probable cause. You would talk with both driver and passengers and their statements may play heavily into what happens. If the driver and passenger(s) are seperated and all say the passenger is just a friend who was picked up and knew nothing of what is in the trunk, then the passenger would probably be let go. If officers stopped the vehicle because they have been watching the group for suspected drug activity, that may be a different situation.

    You would have to show facts that would lead a “reasonable and prudent person to believe” that the passenger had committed a crime.

  9. Lee Lofland
    Lee Lofland says:

    Elena – One more thing. Cops also have to be a bit leery of stopping lone female drivers. Believe it or not there are women out there who chase guys in uniform (of course it works in reverse, too – guys chasing after women in uniform). These cop-groupies do illegal things just to get stopped by their target officer. After they’ve been stopped they try to arrange a date with the officer. This is never a good situation. Cops call these ladies, Badge Bunnies.

  10. Meriah Crawford
    Meriah Crawford says:

    I’ve never hesitated to stop for a police car (and have all too much experience with that), but I don’t think I’ve ever been stopped by someone in an unmarked car. I would be worried that delaying long enough to make a phone call would piss them off. Also (going way off topic here), if there’s a big shoulder on the left, do officers prefer you stop on the right anyway, or is the left OK? If an exit is coming up, can you just signal and take the exit? If you’re going the speed limit (by then 😉 will they mind the delay? Will they understand you’re not just ignoring them?

    Oh, and to bring it back on topic, if you pull someone over, there’s probable cause, you search their trunk, and find drugs, what’s the situation for the passengers? Does that depend on the area? Thanks!

  11. Lee Lofland
    Lee Lofland says:

    Dave – Searching a street thug’s pockets is kind of like digging into a box of Cracker Jacks, huh? I’ve pulled out knives, guns, drugs, voodoo stuff, hair, condoms (used and unused), and needles (used and unused) to name a few things. Oh, and lets not forget the pervs who’ve cut out the bottoms of their pockets…

  12. Lee Lofland
    Lee Lofland says:

    There are leather gloves available for protection against sharp objects. They’re lined with a chain-mesh-type material similar to the gloves worn by people who work in poultry deboning plants. But, they’re uncomfortable and not many officers wear them.

  13. D. Swords
    D. Swords says:

    Hi, Clea.

    If officers run into a situation (toxic or contaminated items) that may be over their heads, they will call for assistance from whomever can handle it. Many times. fire fighters are trained in toxic material handling.

    Meth labs present an expensive problem for police departments. Luckily, that’s not a prevelant problem in my area. But, whenever a meth lab is discovered, the EPA has to get involved and it must be cleaned up by experts in the field.

    As for syringes, etc. it’s just a matter of taking your time and proceeding slowly. You will most often run into that problem when reaching into someone’s pocket. Thay can have syringes, knives, razor blades. Who knows what’s in there when you stick your hand in. That’s what makes it so FUN!

  14. Lee Lofland
    Lee Lofland says:

    Dave – I’m thinking maybe the guy was an officer and was up to no good. Perhaps, nothing really serious, but maybe hoping to get a phone number…Sad, but true. I’ve seen it happen.

    I agree with Dave. I think we’d be remiss if we didn’t say say that the law requires everyone to pull over for flashing blue/red, (emergency) lights on a police car. It’s illegal to ignore those signals.

    Still, use your common sense. If the car with winking blue lights is a beat-up old Volkswagon, and the guy driving it is wearing a green clown wig and nothing else, you probably shouldn’t stop.

  15. D. Swords
    D. Swords says:

    Elena & Lee,

    You’re right Lee, that seems like an odd reason to stop someone. Then again, if that person were up to no good (maybe not really an officer) he would not have followed Elena inside the truck stop. But driving to an area where there are people is not a bad idea.

    Elena, I’d watch “racing” the flashing lights somewhere. If you commit any traffic violations while refusing to stop, you are asking for trouble. Lee had an excellent thought in calling dispatch on you cell. This shows that you did in fact have concerns and were not just refusing to pull over.

    Again, this would be a rarity, and I am not advocating not pulling over for the police. As in anything, use your head and take reasonalbe actions.

  16. CleaSimon
    CleaSimon says:

    I say your instincts wer good, Elena (I’m not a cop – but I am a woman).

    I have another question: What is the procedure if the cops fear there might be something that could hurt them (syringes, say, or something toxic or contaminated)? There are some things in my trunk that I’d hesitate to grab!

  17. Elena
    Elena says:

    For a woman, even stopping for an apparent police car is something that requires quick thinking.

    I once refused to stop for a police car in a lonely area when I saw no reasonable need and raced the flashing lights to a truck stop. I ran inside yelling for a cop and had a lot of new friends around me when the guy came in.

    He told us he was worried about me driving alone in that area and at that hour. Then he left. It was a rural area, but not a bad one. I do not know the truth of the matter, but I am very glad I didn’t stop.

  18. Lee Lofland
    Lee Lofland says:

    Terry – The same is true in reverse. Police officers, as a rule, would prefer to have another officer present as a witness. This is especially true if the officer (male) plans to search a car belonging to a woman. Civilians have been known to tell a fib hoping to win a large civil suit against the officer. They’ve also fabricated stories hoping to get out of their charges.

    Personally, if I were the officer in the scenario you’ve described, I’d never allow you to drive anywhere, including to the police station. In fact, as a former police academy instructor/instructor trainer, I’d never teach that practice to other officers.

    If probable cause existed that allowed me to stop your car and search it, then there’s a good chance you’d be able to destroy or alter whatever evidence I thought you had while you’re happily motoring along the highway. There are many other reasons why the driver shouldn’t be allowed to drive away with the officer in tow, but this one will suffice for now. I might call another officer to the scene, but that’s about as far as it would go. Sometimes, there just isn’t another officer available. i can remember many, many nights when I patrolled an entire county by myself.

    FYI – If you’re driving alone and are afraid to stop, simply dial 911 on your cell and ask if the car behind you is actually a police car. If the dispatcher says yes, tell him you’re frightened and ask for a second patrol officer or supervisor to report to the area before you stop. Or, drive to a police station or fire department before you stop, if one is nearby. For goodness sake don’t speed away. If all else fails, drive to a well lit business.

  19. D. Swords
    D. Swords says:

    In such circumstances, Terry, having a supervisor on hand would make me feel better. The second officer might be junior to the one who stopped you, and would not want to “buck” the senior officer if there were any questionable acts.

  20. Terry
    Terry says:

    Thanks — all the cops I’ve met and dealt with (as a writer, not a suspect) have seemed to be very dedicated to their jobs, very straightforward and very helpful. But then, I’m virtually incapable of lying, so I assume everyone else always tells the truth, too.

    Around here, the cops patrol solo, so I’d probably feel more comfortable if there was some kind of a witness. Of course, nothing says two would be any more honest than one.

  21. D. Swords
    D. Swords says:

    Hi, Terry.

    It’s true that there are bad apples in every barrel, but I speak from experience, and in all honesty, when I say I believe those bad apples to be the rare exception.

    If an officer asked me if he could search my car, my first response would be, “Why?” If he could not articulate a reasonable need, I might say no. Or at least ask for his supervisor to be sent to the scene. Then again, I know how far I can push things and avoid getting locked up. He may have a very good reason for wanting to search my car, and if I believed him, maybe I would let him. And if you say no, he may search anyway, dependant upon the “probable cause” the officer feels he may have. Or he can get a warrant.

    But I suppose as a general rule, your friend’s advice cannot hurt. The police in your area may have a reputation for being trusted, or not. You would know better than anyone.

    Bottom line, you never have to give consent for agents of the government to search anything, regardless of the circumstances.

  22. Terry
    Terry says:

    Thanks to Lt. Swords for sharing his information and expertise. Question (a real one this time). One of my crit partners was married to a cop. She said his advice was if she was ever stopped for a traffic stop, for any reason, and the cops asked if they could look in her trunk, she should say, “No,” and if they wanted to look, she’d be happy to drive to the station and they could look there. With witnesses present. He said most cops are honest and aboveboard, but it wasn’t worth the risk to get the one in however many who just might ‘find’ something that wasn’t hers and hadn’t been there when she left the house. What’s your take?


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