We all expect some degree of privacy, even while driving around in public. In fact, the Fourth Amendment to the United States Constitution provides us all with the right to be free from unreasonable searches and seizures. Generally, this means that police must obtain a warrant before they conduct a search. However, there are all kinds of exceptions to this requirement, particularly when it comes to searching your car. So when can the police search your car? Well, a warrantless search of a car is legal where there is probable cause that the car contains evidence of a crime. If there is no probable cause, then a warrantless search of your car is presumed invalid unless it falls within one of the following exceptions.
- Consent: One of the most common exceptions, at least in my experience, is when a person agrees to allow police to search their car. If you consent to a search, you are essentially waiving the warrant requirement. You don't have to do this. You have to right to refuse consent and your refusal cannot be used against you. It will almost never be in your best interest to consent to a search, no matter what a police officer says. If you refuse consent and the police still search your car, you may be able to challenge the search later in court. Even when the state claims that you did consent, it must prove that your consent was freely and voluntarily given.
- Plain View: Another common exception is when a police officer sees evidence or contraband in plain view inside the vehicle before even entering the vehicle. Seeing evidence in plain view does not technically constitute a search, but gives the officer probable cause to conduct a search. The item seen by police must be immediately apparent as evidence or contraband for this exception to apply. If officers have to manipulate an object to determine whether it is contraband or evidence, it is not considered to be in plain view. A search can also be justified by "plain smell" when an officer smells contraband such as marijuana.
- Protective Sweep: If you have been removed from your car and arrested, the police can search your car for weapons. If the police find contraband within your car, even though they are ostensibly just searching for weapons, it can be used as evidence against you. It is important to remember that this exception to the warrant requirement is meant to ensure officer safety. The theory is that an arrestee could conceivably lunge back into the car, grab a weapon, and attack an officer. Can police search your car under this exception if you have been handcuffed, placed in the back of a police car, or moved to another location? Probably not. It will be very difficult for the state to justify a warrantless search under this exception if you pose no threat to their safety.
- Inventory Searches: This is the exception of last resort for the police if they cannot justify a search in any other way. If the police lawfully take custody of your car, they are entitled to conduct a warrantless inventory search of the car. The professed justifications for this exception are: (1) the need to protect and preserve your property; (2) the need to shield the police from claims of damaged, lost, or stolen property; and (3) the need to protect police and others from any dangerous objects. To be valid, however, these searches must be conducted in good faith and pursuant to standardized police procedures.
If you have been charged based on evidence found following a search of your car, you should consult with an experienced criminal defense lawyer. The validity of such searches depends on a variety of fact-dependent factors that should be closely examined. If the State is precluded from using critical evidence at trial because of an illegal search, there's a good chance that either your charges will be dismissed or you will win the trial.
* This blog is published by Tucson DUI and criminal defense lawyer Nathan D. Leonardo. Nothing on this website is intended to create an attorney-client relationship. The information provided herein does not constitute legal advice, but is for general information purposes only. If you have a legal question, you can contact us online or call (520) 314-4125.