Can The Police Search My Car?
If you have been pulled over by the police for any reason, and they wish to search your car they will need your consent or a warrant.
The police can search your car only under three circumstances. First, with your consent or secondly with a warrant. The only other ability the police have to search your car is an inventory search which is part of a caretaking function and we will discuss along with the two investigatory searches afore enumerated.
You do not have to give your consent roadside, and can refuse to allow the police to search your car. Any additional search of the car would have to be done by application of a warrant, or as part of an inventory search if your car is impounded. Whether or not to impound your car is a question which has a complicated answer and is answered below. Assuming you are not under arrest, and have not consented to a search, the police would then need to seek a warrant from a judge to search your car. They would have to convince the judge that probable cause exists based on observations they are making and /or things you are saying or doing. Most routine traffic stops do not give probable cause for a search.
If you are under arrest for something you have done, or on an old parking ticket warrant, or the like, the police may search the area within your immediate reach pursuant to that lawful arrest. They can also search your person and pockets at this point. A strip search and / or body cavity search requires additional reasons and is not lawful at this point without more.
So if you’ve been stopped for a routine traffic matter such as tint, an air freshener in your windshield, speeding or some other minor traffic matter, the police have no right to search your car pursuant to that stop. They must separately obtain your consent for a search of the car and this is most frequently done by returning to you your license and registration and informing you are free to leave.
The officer will often turn and walk away, but need not, and will then begin to question you anew and ask for the ability to search your car, often citing some nebulous thing such as “well we’ve been having a lot of problems with drugs on this highway,” and then asking you if you’d be willing to consent to a search. Basically suggesting that if you aren’t part of the problem, then certainly you’ll say yes. Many officers use a carefully scripted routine designed to prevent triggering Constitutional protections, but also designed to make a reasonable person feel as if yes is the only acceptable answer.
The average person even if they have drugs in the car seems to assume that when asked they should consent or else the police officer will hold this against them. Since you have an absolute constitutional right not to consent to the search, the police officer cannot use your unwillingness to consent as a basis for further detention and/or in conjunction with other factors to determine whether or not to get a warrant and/or to determine whether or not to search without your consent or further detain you.
Therefore the only right answer when asked if the police officer could search your car is no. If you don’t think you have anything illegal in your car, you may be surprised that one of your many passengers and/or a passenger who used the car when you were not the driver has left behind evidence of a crime. Many people falsely assume that because some small amount of marijuana or other contraband which is not tehirs is found in the backseat that they will easily be acquitted of the charge. Anything found in your car can and will be used against you in a court of law, and you will have little or no ability to prove you did not know it was there. Imagine being a juror in such a case, you didn’t know there was illegal fireworks in your trunk?
I’ve heard some people say, “well I don’t associate with bad people, I know everyone who’s been in my car and I know everything that’s in my car“. They could still benefit from shutting up and declining a search. If the car had a previous owner contraband could be lurking where police will look. They will detail the car, not just open and shut the trunk. And even if it was a brand new car there’s nothing to say that the car dealer who sold it to you didn’t have an employee who left something behind in the car . Therefore allowing a search of your car is again never in your own best interests.
The police have to have reasonable suspicion to detain you and if they have reasonable suspicion to detain you beyond the traffic stop then your consent is going to be found to be valid. If on the other hand the police detain you without reasonable suspicion, and you do consent to a search we still may be able to keep the evidence from being used against you in court. That said in many instances you will find that the evidence will be admissible because most officers can articulate a basis for the continued detention. Sometime they will even articulate a basis that didn’t exist.
When police do have a basis, it is a series of individual facts taken together. The driver was nervous, and smelled of marijuana, or there was multiple air fresheners and dryer sheets in the back seat, no luggage, and the car was rented out of state. One of the often cited reasons that they will give is that the passenger and/or the driver have given stories that don’t’ make sense or don’t appear to know where they’re going and/or give different final destinations. There are many innocent explanations for this, but it is a legitimate indication of drug trafficking as well. Drug traffickers will often try to hide their final destination and point of origin. Police officers knowing this cleverly move the individuals in the car apart and question each one separately to look for divergences in their stories.
If you are arrested, or your car “must” be towed, the police get a free look around as part of an inventory search. A clever police officer finds a lot of contraband this way, and avoids tough constitutional questions at the same time. This just means since we’re towing it, we’re checking it for valuables. For your protection of course. But anything found will be used against you.
So the next time you’re pulled over roadside remember that you have:
A. No duty to talk to the police, and
B. No duty to allow them to search your car.
Of course if you have nothing to hide, just let the government dig through your car and see what they find.