The Fourth Amendment of the U.S. Constitution protects citizens from unlawful searches and seizures, which can apply to your person, home, business or car. Since the Constitution protects citizens from falling victim to an unlawful police search, it is important to know when the police can and cannot search your car, especially since the conditions for searching a person, home or car are somewhat different.
Consenting to a Police Search
Simply being pulled over does not automatically give the police any legal authority to search your car. If the police want to search your car they need your consent, probable cause or a warrant; otherwise, they are violating your constitutional rights. When a police officer is asking for “consent” to search your car, he or she is asking for your permission. You have every right to tell the police “no” if they ask you to consent to the search. The police will ask you to consent to a search if they do no yet have a warrant or probable cause, and by consenting to a search of your car you are also eliminating the need for a warrant, even if it is a situation in which they might have typically needed one.
Probable Cause to Search a Vehicle
Another way the police can search your car is if they have probable cause. Probable cause is when the police must have a reasonable belief that evidence or contraband will be found in the car, however, this must pertain to items that can be seen from a lawful location and are essentially in plain view; a police officer cannot move things around to find contraband. For example, if a person is pulled over and the police officer can see drug paraphernalia sitting on the seat, then they have probable cause to search your car. Another example of probable cause is if, when talking to you, the officer can clearly smell a strong odor of marijuana coming from you car.
Searching a Vehicle After an Arrest Has Been Made
Ordinarily, the police must have search warrant before conducting a search. However, after you have been arrested, the police may search your person and the immediate area around you without a warrant. This is known as a “search incident to arrest.” The police may also search, if at the time of arrest, the arresting officer observes contraband.
If the arresting officer finds items that are illegal to possess, such as a gun, drugs or drug paraphernalia, at the time of arrest, the arresting officer will retrieve the item(s) and charge you for unlawful possession of the item(s). The arresting officer may also take your wallet, identification, money and other personal items from you at the time of your arrest, for inventory purposes, and maintain the items in a secure place until your items can be returned to you, or used as evidence against you. It is important to verify that all of the items the officer removed from you are inventoried on a written list.
Finally, if the police have obtained a warrant you must let them search your car, but even if they do have a warrant that permits them to look for a gun, for example, then they cannot look for it in someplace that would obviously be too small to hold it like a cigarette lighter. The glove box, for example, would be a spot they could search, and anything they found while looking for the gun, for example drugs, would be considered in plain view, so the police could charge that person with possession. The only other time the police are permitted to search you car is if there are exigent circumstances that lead the officers to believe evidence will be destroyed if they do not collect it immediately.
Remember, if you have been pulled over you do not have to consent to a police search, but if you do consent or the police have found probable cause or obtained a warrant, and you have been arrested as a result, it is important to contact a criminal defense attorney at Dolci & Weiland to help you fight these charges.