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NOVA Legal Beat: Consent to a Search?

By ARLnow.com

Wednesday - 9/25/2013, 3:30pm  ET

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Editor’s Note: This sponsored column is written by Mathew B. Tully of Tully Rinckey PLLC.

Q. Is a police officer allowed to search my car if he pulls me over for running a red light? Can I oppose any such search?

A. One of the most confusing aspects of the law for ordinary citizens regards what is and what is not permissible during a traffic stop. In fact, it sometimes confuses attorneys! Under ordinary circumstances, an officer is not permitted to search your vehicle just because you ran a red light. There has to be probable cause that a crime is being committed before searching your vehicle. A commonly used basis for probable cause is an “odor” of marijuana. Absent such an odor or other similar probable cause, there would be no basis for a search.

However, the officer is allowed to ask you to leave the car, which can allow them to frisk you for weapons and other dangerous items. This frisk can of course lead to the discovery of non-dangerous, but otherwise illegal items. Additionally, you can be arrested and a search can be conducted to inventory your car for “safekeeping” purposes. If they discover an illegal item then you can be in big trouble. Also, if you consent to a search, then they can of course search your vehicle. The law on this is very detailed and fact-oriented, so generalized advice may not apply to your circumstance.

If you’re asked to consent to a search, you should absolutely decline that request. There is no good reason to consent. Many defendants, knowing there is contraband in their car, have consented to a search because they think an officer won’t search if they agree to it. Needless to say, the search occurred and they had no defense to it. If an officer searches or threatens to search your vehicle, do not volunteer information to them. You could eliminate any defense you may have at court.

Absent probable cause on the scene, the officer cannot conduct a search without your consent. They may be on a fishing expedition for contraband – don’t take the bait by consenting! If a search was conducted without your consent, you need to notify your attorney as soon as representation begins. A motion to suppress is required to contest the validity of the search and exclude the results of it from trial, and that motion may need to be heard prior to your trial date. An experienced attorney can walk you through a thorny area of the law.

Q. I was arrested for stealing jewelry. The charge was grand larceny, even though what I took was pretty much worthless costume jewelry. What can I do?

A. It doesn’t take much in Virginia for theft to become a felony offense. There are two main larceny offenses in Virginia: petit larceny which is when the value of an item is under $200, and grand larceny when it is over $200. As you might imagine, it doesn’t take much these days for an item to be worth $200.

So how does one determine value? Normally the owner of the item will testify to its value. In shoplifting cases, it is a matter of looking at the price tags and going from there. When it is an older item such as jewelry, the basis is fair market value. That can be a pretty subjective determination, particularly when you’re close to that $200 mark.

Depending on your record, you may have some options when it comes to court. One option would be a deferred disposition or a reduction to the more benign misdemeanor of petit larceny. While still a crime of “moral turpitude,” petit larceny carries much less severe consequences than a grand larceny conviction, which is a felony punishable by up to 20 years in jail and a loss of some civil rights. However, even a petit larceny conviction can have consequences, particularly if you are an immigrant, so make sure you talk with an attorney in detail before accepting any plea.

Mathew B. Tully is the founding partner of Tully Rinckey PLLC. Located in Arlington, Va. and Washington, D.C., Tully Rinckey PLLC’s attorneys practice criminal defense, matrimonial and family law, federal employment law, and military law. To speak with an attorney, call 703-525-4700 or to learn more visit 1888law4life.com.