All searches done without a search warrant are presumed unreasonable and illegal but the exception to this rule is the focus of most legal arguments

Alfonso Gambone
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Alfonso Gambone is a Philadelphia criminal defense attorney dedicated to protecting your rights.

 

Our law firm based in Philadelphia, PA and Moorestown, NJ, defends individuals charged in these states with illegal gun and firearm offenses (Pennsylvania—violation of the Uniform Firearms Act; New Jersey—Graves Act offenses). In these cases, while obviously a strong trial defense is necessary, it is crucial that we analyze potential Fourth Amendment violation issues.

The Fourth Amendment, through the US Constitution’s Due Process clause (Fourteenth Amendment), protects all citizens against all illegal searches and seizures. As I have stated frequently in my free books, blogs, and newsletters, all searches done without a search warrant are presumed unreasonable and illegal.  

 

Search & Seizure Issues Are Focused on The Exception to the General Search Warrant Rule

 

It is not the general rule, however, which is a source of much legal argument in this area, but rather the sections to it (warrantless searches). One of the most common areas and issues that we see in criminal courts in Pennsylvania and New Jersey are traffic stops where a handgun or firearm is found within the vehicle by police. It is important to understand that in most of these situations police don’t stop the car because they see an illegal gun, drugs or narcotics (plain view), but rather because of some minor vehicle code violation (speeding, running a stop sign, or bad taillight, expired vehicle registration).

 

Reasonable Suspicion & Probable Cause to Stop and Search

Courts will determine reasonable suspicion and probable cause based on a totality of the circumstantial analysis. I’ve discussed both of these concepts in all of my books and frequently on this blog. Reasonable suspicion is a lower form of probable cause. Probable cause allows police to search a vehicle without a warrant, but reasonable suspicion allows police to frisk a suspect and/or bags within the vehicle if they believe the suspect or the bags contain contraband which could harm the officer (i.e. guns, firearms,etc)

 

Movement within the car following a vehicle stop—Officer Safety Issue

 

In Pennsylvania, if police stop a car and during that stop witness the driver or the occupants moving within it with motions indicative of an attempt to conceal an item, this, in and of itself, is enough for police to frisk the driver and/or bags within the car. The fact that the driver and occupants cooperate with the police doesn’t erase the belief that any of these individuals may have access to a gun. Officer safety is a usual issue and an exception to the warrant requirement. Basically, police are allowed to search a suspect or bags if they believe that either of these locations contain an item which could cause harm to the officer. This is important because there are many situations where police don’t see or observe, smell, or otherwise detect drugs or something that would indicate that the vehicle contains contraband (bulge of a gun).

 

The police officer’s safety overrides a criminal defendant’s expectation of privacy interest

 

Officer safety, again, needs to be the focus of your attorney’s argument during the warrantless search which recovers a gun. If, for example, a person is taken out of a car and placed under arrest, the unoccupied car no longer presents a threat to the officer’s safety, even if the officer believes it contains a gun. The situation is different if the person is simply detained rather than arrested. If the person is detained for investigation and there is a possibility that the officer will later release the person back into the vehicle, the threat to the officer’s safety still exists and the court may allow the search and find that a warrant wasn’t necessary. The evidentiary standard that our Supreme Court uses, along with the United States Supreme Court, is whether the police officer had sufficient facts that his or her safety was compromised. If the officer reasonably believes that safety is compromised, the search is permissible as the officer’s safety overrides the person’s expectation of privacy and right of illegal search and seizure.

For more information on criminal defenses involving illegal guns and firearms in Pennsylvania and New Jersey, I encourage you to keep reading my blog and visit my free download section.

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