DATE: Tuesday, June 24, 1997                TAG: 9706230116

SECTION: LOCAL                   PAGE: B3   EDITION: FINAL 

TYPE: PUBLIC SAFETY 

SOURCE:  - Naomi Aoki

                                            LENGTH:   64 lines

Q & A: COURTS MAKE CAR SEARCHES EASIER - BUT NOT AUTOMATIC

Why do police officers have more right to search our cars than our homes? I know the Supreme Court has ruled that police don't need warrants to search cars. But in Virginia, we pay property taxes on our cars just as we do our homes, so why aren't they equally respected?

- Donald Wood, Norfolk

Over the years, courts have ruled that police don't need warrants to search cars but do need warrants to search homes for two reasons, said Ann Coughlin, a professor at University of Virginia Law School.

Courts have considered cars ``fleeting targets'' since Prohibition days, and as such, cars don't afford police the time or opportunity to get warrants. But houses aren't going anywhere, so police must get warrants.

More recently, courts have also ruled that people have a lesser expectation of privacy in their cars than in their homes. After all, it's easier to see into cars, and they are meant to travel on public roads and spaces, Coughlin said.

Still, she said, you do have some protection from car searches.

Police must have probable cause, which means there must be enough evidence to make a reasonable person suspect criminal activity, or they must have your consent to search your car. Coughlin warned that if you are arrested, police have the right to search everything but the trunk.

But if you aren't arrested and police don't have probable cause, they can't legally search. ``For whatever reason, people are constantly saying yes,'' Coughlin said. She suggests politely saying no.

``Car stops and searches are one of the areas where there is great potential for arbitrary and discriminatory abuse,'' Coughlin said.

She said courts are still struggling with the role race can play in determining probable cause. Race alone is not enough, she said. That's clear. But the more difficult question is whether race can be one of the factors in establishing probable cause. That is still being argued, she said.

My mother left a will stating that my brother and I should split whatever money and belongings she had when she died. But while she was alive she gave my brother power of attorney and he put all her savings into a joint account. He set it up so the money automatically became his when my mother died. I didn't get any of it. Is there anything I can do to recoup some of the money?

- Kenny Powell, Norfolk

First, you need to look at the power of attorney and see if it gave your brother the authority to make gifts in your mother's name, said Amy Peseski, an attorney who frequently handles trust and estate cases.

Under state law, your brother would have that authority only if the power of attorney gave him full power over your mother's affairs and if your mother had a history of giving gifts.

Setting up that type of account was essentially giving himself a gift from your mother, Peseski said, and would be illegal if he didn't have the right to give gifts. If your brother did have that power and your mother had a history of giving him money, the case would be harder to win, she said.

Second, Peseski said, your brother had a legal obligation to act in your mother's best interest. People can't use powers of attorney to enrich themselves. Peseski said she would argue that your mother intended to leave her money to both of you equally; therefore, your brother wasn't acting in her interest.

``Whether you'd win or not, who knows,'' Peseski said.

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