When is there probable cause for a search?

Roughly 2:00 am officers arrives at the scene of a private parking lot for a business park to find defendants vehicle had veered off the road into the grass/wooded area. Defendant unconscious/asleep in the driver side of the vehicle. Officers wake the defendant and begin to ask questions. Defendant was completely coherent and cooperative with police while being questioned, both in and out of the vehicle. Immediately asked officers to perform breathalyzer as to prove drinking was not involved. During the questioning and before any charges are brought up, another officer is searching the vehicle, subsequently finding an alleged illegal substance. I argue that once the defendant and officers began communicating, the behavior of the

defendant would not indicate there were a reasonable cause to believe a crime was being committed. No arrest was made prior to the discovery of the item and defendant was not taken into custody, being released with summons.

Asked on September 27, 2016 under Criminal Law, Virginia

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

Most people are not asleep or unconscious in their vehicles at 2am off the road, in grassy or wooded areas. Once the defendant awoke and was obviously not injured (so his state was not due to hitting his head in a crash, for example), the reasonable cause would be intoxication of one form or another. Since not only are illegal drugs, of course, illegal, but an open bottle in the vehicle would also be illegal, this would provide probable cause, or reasonable grounds, to suspect illegal activity (e.g. drug use) and search.


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