First off, our Fourth Amendment and court interpretation of that right, has established that a search not based on a warrant issued by a court, is presumed to be unconstitutional. However, the courts have recognized “exceptions” to this requirement for a warrant. A warrantless search that factually falls under a recognized exception is not presumed to be unconstitutional.
The constitutional authority for police to search your car is lawful if:
- The search is conducted with a search warrant
- You consent to the search
- The search is conducted under facts which establish application of one of the recognized exceptions to the warrant requirement
- At the stop, the officer develops reasonable suspicion of your commission of a crime (beyond the reason he stopped you) to detain you at the stop for additional investigation or he develops probable cause to support a warrantless search based on information he develops at the stop through his observations and senses.
Can police search your vehicle for no reason?
The short answer to that question is “no”, but that does not mean you are immune to an unwanted roadside search.
The Fourth Amendment protects citizens from arbitrary search and seizure by a law enforcement officer. There are only limited situations where a police officer can enter your home without a warrant. However, since 1925, the Supreme Court has upheld that there is a “constitutional difference between houses and cars”
The South Carolina Supreme Court has followed federal law on investigative stops in permitting a law enforcement officer to briefly detain and question a person on reasonable suspicion of criminal activity, short of probable cause for arrest. In other words, an officer can legally search your vehicle based on reasonable suspicion alone.
When exactly can an officer search my car?
The officer who pulled you out of traffic can lawfully search your car in the following situations:
1. You give him or her permission (consent)
Bear in mind: if you consent to an automobile search, evidence could be collected by the police department and used against you in court. And if you do consent, you can revoke that consent at any time.
2. The officer has probable cause to believe the vehicle contains evidence of a crime
An Officer may search a vehicle without a warrant where there is probable cause to believe that vehicle contains evidence of a crime and that exigent circumstances due to the mobility of the vehicle make it likely the evidence could disappear if the search is not executed immediately.
Probable cause is a very difficult thing to explain since there is not a set definition! Probable cause can be different based on the specific facts, circumstances, and situation of a given encounter with law enforcement. Perhaps the officer was driving behind you and saw you throw a beer bottle out the car window. He immediately pulls you over. The officer sees the beer bottle laying on the ground. At this point, the officer most likely has probable cause to search your vehicle for open containers of alcohol and evidence that you may be driving under the influence.
Here is another example: maybe the officer received a reliable report that you were operating a portable meth lab in your vehicle from a source that is reliable and believable. Based on that information, the officer has reason to believe you are manufacturing methamphetamine and has probable cause to search your car.
Important Note: The officer does not need probable cause to walk a drug-sniffing dog around your car as long as you are not detained for an unreasonable amount of time while waiting on the dog. If the dog detects an illegal substance, by “alerting” to his handler, that alert provides the Officer with probable cause to search your car.
3. The officer spots evidence of criminal activity in plain view
If the cop notices something illegal in your car, such as an illegal weapon, a bag of marijuana, or items that are typically used for drug use, that observation provides probable cause for the officer to search your vehicle without your permission or a warrant. The important part of this rule is that the evidence must be in plain view. “Plain view” is an exception to the constitutional requirement for a warrant.
4. You have been arrested
This is called the “search incident to arrest” rule. A search of your person is allowed once you have been arrested. Based on the charge upon which you are arrested, the officer can expand the search to your vehicle in pursuit of other evidence of that offense or others. The Officer can search any area of the car where evidence of your charged offense might be found. For example, if you were arrested for a stolen TV the officer saw in your backseat, TV sets do not fit in glove boxes. He would be hard-pressed to suggest that he was authorized to explore your glove box. But if you were charged, for example, with simple possession of marijuana, marijuana could logically be stored virtually anywhere in the car. Thus, the officer would be able to search the entire car without violating the Fourth Amendment.
5. Your car is impounded
Once you are arrested, the Officer may elect to have your car towed. If so, the Officer may search your car thoroughly under what is known as the “inventory” exception to the requirement for a search warrant. The idea is that having made the decision to call for a wrecker to tow your car, the Officer could be held responsible should that third party elect to steal or simply lose valuable items in your car. An Officer’s search of your car under the “inventory exception” cannot be a ruse-it must be legitimate. The way an Officer establishes the constitutional legitimacy of this search, is to make a written list or “inventory” of the items he finds in your car during this search. If he or she fails to make a written inventory, the argument can be made in court to suppress any evidence he finds inasmuch as his “inventory” search was simply a pretext to “toss” the car when there was no other warrant exception available. Fourth Amendment protection.
What should you do if you are stopped by a police officer?
No driver wants a surprise encounter with a law enforcement officer. If it happens to you, follow these guidelines:
- Present all legally required paperwork, including license, registration and insurance coverage verification.
- Exercise your right to remain silent, if you wish. You do not have to say anything.
- If an Officer asks for consent to search your car, you have the absolute right to refuse. Neither you nor your passengers have to consent to a search.
- You also have the right to contact an attorney.
- Should you elect to remain silent, or seek advice of an attorney, simply advise the Officer of this in a respectful manner. These are your constitutional rights.
Common Questions About Police Searches of your Vehicle in SC
If you are like most people, your mind begins to race when you see those flashing blue lights in your mirror. Here are answers to a few common questions you may have that I have been asked by previous clients.
Can the police search my car without my consent?
Yes. Absolutely, if they have a search warrant to do so. If he does not have a search warrant, and you do not provide consent, he can only search your car under recognized exceptions to the Fourth Amendment. Discussed above, those exceptions are: plain view, a K9 dog alert, he has a reasonable, factual basis to believe that you are in a position to harm him or others, if he develops probable cause not from seeing contraband or evidence in plain sight, but by using his other senses there in the presence of your car. He might smell the odor of marijuana. He might hear someone calling for help from the trunk. And lastly, if he has a basis to two your car, because he arrests you or for example, your car does not have a license plate or is uninsured, he may conduct an inventory search.
Can the police search my car at a DUI or drug checkpoint?
Yes, police can search your car at a DUI or drug checkpoint. However, they can only do so if you consent to a search or the officer has probable cause to believe you are carrying illegal drugs or are under the influence. Also, the checkpoint must be conducted constitutionally: the police must stop every car and cannot do so randomly, they must show a statistical basis to conduct the checkpoint at that location, a supervisor must be present and they must keep detailed records of what occurs during the period of time the checkpoint is conducted.
Can the police search my car at a U.S. border checkpoint?
Yes. Officers who work for the Department of Homeland Security (DHS) enjoy free reign over your vehicle at these checkpoints. The authority for law enforcement officers to do so exists under yet another recognized exception to the search warrant requirement-the border exception. It is under this theory of law that you are able to be searched before boarding a commercial airplane. Airports are considered borders.
Can the police search my car on school property?
Yes, in some situations. For example, if an officer cruises the parking lot and notices a bloody hand-print on your car door, he can claim that this observation created reasonable suspicion authorizing him to approach you to inquire further to either confirm or dispel that a crime has occurred. Another situation is a type of implied consent. Most school access area entrances display signs warning that if you enter those areas you are subject to search in that if you enter, your presence establishes that you have consented to be searched. Under these circumstances, no search warrant is required. No exception to the search warrant requirement needs to be recognized. By entering, you have provided consent-impliedly.
We can help
Law enforcement officers are trained in these legal concepts and employ them on highways and byways at traffic stops and when investigating criminal activity. It is what they have taken an oath to do-detect, investigate and enforce violations of our criminal laws. Yet, your constitutional rights remain intact on the roadside even among these exceptions to the Fourth Amendment. Many brave Americans have fought and died to preserve our democracy built upon these rights.
We want to help you protect them. If you have been pulled over and believe that the search of your vehicle was not lawful, give Kulp & Elliott a call at (843) 853-3310. We will assist you with your next move.