I’ve seen far too many blog posts and YouTube videos proclaiming that police cannot search your car without a warrant – is it really true?
If police ask you to step out of your vehicle so they can search it, should you lock your door, roll up your window, and tell them they can’t search without a warrant because you know your rights?
If you do, odds are your window may get smashed, you may get forcibly removed from your vehicle, and, unless a court later finds that there was no probable cause for the officers’ search, you cannot sue the officers and any evidence they found in your vehicle will most likely be admissible against you…
So, what does the law say about when police can search your car without a warrant? Below, we will take a look at:
- When police can search your car without a warrant,
- What the automobile exception to the Fourth Amendment means,
- When police cannot search your car without a warrant,
- What you should do if police ask you to step out of your vehicle, and
- What you should do if police ask for consent to search your car.
Police Can Search Your Car Without a Warrant: The Automobile Exception
What many people do not understand is that the Fourth Amendment is riddled with exceptions – the exceptions swallowed the rule long ago.
I’m not going to give you an extensive list of those exceptions – that would require much more space than a single blog post allows. But let’s begin with the basics. If police have probable cause that your vehicle contains evidence of a crime, they do not need a warrant to search your car.
Not long after the use of motor vehicles became commonplace in America, as early as 1925, the United States Supreme Court held in Carroll v. United States that there is no Fourth Amendment protection when a vehicle is stopped on the highway and the police have probable cause to believe that there is contraband in the vehicle.
The automobile exception to the Fourth Amendment allows police to search for evidence in a motor vehicle when there is probable cause because motor vehicles are mobile and could be driven away in the time that it takes for police to seek a search warrant and return to the scene.
The courts can later review the officer’s determination that there was probable cause, and, if there was no probable cause, any evidence that was found should be excluded as “fruit of the poisonous tree” – the evidence being the fruit and the unconstitutional search being the poisonous tree.
What Should You Do if Police Ask You to Step Out of Your Vehicle?
Can police ask you to step out of your vehicle?
Yes they can – the US Supreme Court held in 1977 in Pennsylvania v. Mimms that a police officer can make you get out of your vehicle to talk with you on the side of the road rather than standing at your car window – they don’t need probable cause or any reason to ask you to step out of the vehicle other than the officer’s need for safety:
We think it too plain for argument that the State’s proffered justification — the safety of the officer — is both legitimate and weighty. “Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties.” Terry v. Ohio, supra at 392 U. S. 23. And we have specifically recognized the inordinate risk confronting an officer as he approaches a person seated in an automobile.
If you follow the advice of these yahoos on YouTube to lock your door, roll up your window, and demand that the officer go get a warrant, you are only inviting violence. The officer might then be justified in smashing your window and dragging you out of the vehicle if you resist…
So, what should you do?
If an officer asks you to step out of the vehicle, step out of the vehicle.
What Should You Do If Police Ask to Search Your Car?
If a police officer asks to search your car – and they often will – politely decline.
Don’t get self-righteous and angrily demand that they get a warrant. They don’t need a warrant if they have probable cause, and, if they intend to search your vehicle, your demands are not going to change their mind.
Do tell the officer you do not consent to their search and that you would appreciate it if they respect your privacy. Stay calm, be clear that you do not consent, and do not interfere if they begin searching your car anyway.
Police officers will often ask motorists for consent to search their vehicles – they are “fishing” for drug traffickers or large amounts of currency they can take from you. Consent is also an exception to the Fourth Amendment – don’t give it to them. They are less likely to search if you calmly tell them no and ask them to respect your privacy than if you start trying to explain Fourth Amendment law to them…
If they do not have probable cause and they find contraband, your defense attorney will file motions to have the evidence excluded in court.
But if you aren’t doing anything wrong, what do you have to hide?
You are entitled to your privacy.
You are entitled to drive down the road without being detained and searched by government agents.
You are privileged to live in a country where we have constitutional rights – if we don’t use them, we will lose them.
Never consent to waive your constitutional rights when an armed police officer is violating your privacy, but 1) deny consent calmly and 2) do not interfere if they search anyway.
Arizona v. Gant: When Police Cannot Search Your Car Without a Warrant
In Arizona v. Gant, the US Supreme Court held that police cannot search your vehicle “incident to arrest” when 1) you cannot reasonably access the vehicle (because you are in handcuffs or detained at a distance from the vehicle) and 2) there is no reason to believe that evidence of the crime would be found in the vehicle.
This is a narrow holding – in Gant, the driver was arrested for driving under suspension. There was no reason to believe that there would be further evidence of driving under suspension in the vehicle, and the vehicle was parked legally. In the absence of additional evidence, there was no justification for police to then search the vehicle for drugs or other contraband unrelated to the arrest.
In most cases, Gant will not apply because:
- If a car is not parked legally, police can search under the “inventory search exception.” If the car is going to be towed anyway, its contents will be inventoried, and discovery of any contraband would be inevitable,
- In many cases, like an arrest for drug possession or trafficking, there will be probable cause that further evidence will be found in the vehicle, and
- There are numerous other exceptions to the Fourth Amendment that may apply, like the plain view exception. If police see contraband through the car window, they can then enter the vehicle to retrieve it.
Collins v. Virginia: Police Cannot Search a Car in Your Driveway Without a Warrant
The automobile exception applies to vehicles that are in motion on the highway – police cannot search your car without a warrant if it is parked in your driveway, even if they do have probable cause.
For example, in Collins v. Virginia, the US Supreme Court held that an officer could not enter someone’s driveway to look under a tarp and photograph a motorcycle – even if they had probable cause to believe the motorcycle beneath the tarp was stolen – without first getting a search warrant.
Every case is different, Fourth Amendment law is complex, and the unique facts of each case will determine whether we can get evidence excluded based on a Fourth Amendment violation.
Criminal Defense Lawyers in Conway, SC
Attorney Johnny Gardner has over twenty years of trial experience defending misdemeanors and felonies in SC courtrooms including drug crimes resulting from traffic stops and getting evidence excluded because of Fourth Amendment violations.