Riviera Beach, (Fla.) Sherff's Deputy Sean McMichael searches a suspect's car following a traffic stop. Photo Zuma/Richard Grovilch
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A large part of a police officer's job is conducting traffic stops and issuing citations. Often, officers are confronted with situations that allow them to search vehicles they stop. However, many officers, after they have conducted a lawful search, cite the wrong legal theory to support that search when drafting their police reports. For example, an officer who searched a vehicle and found marijuana in the center console may write in the report that they conducted an inventory search, when in fact the officer conducted a search incident to a lawful arrest.
It s important for officers to understand the various legal theories that form the basis of a vehicle search, particularly when it comes to drafting police reports or testifying in court.
Of course, any time an officer physically enters a vehicle (as opposed to standing outside the vehicle and looking in) the officer has conducted a search. Example: An officer who reaches into a vehicle to physically remove papers from the dashboard in order to view the vehicle identification number (VIN) has conducted a search.1 On the other hand, standing outside a vehicle and looking at the VIN without reaching in to the vehicle to move anything to see the VIN is not a search. The latter is often referred to as the open view or plain view doctrine, which is an exception to the warrant requirement. In the former scenario, the officer must justify the reason for the search.
In this article, in very general terms, I ll discuss the various theories that police officers can use to search a vehicle after they have conducted a lawful traffic stop, including
- Probable cause (automobile exception);
- Search for weapons;
- Search incident to arrest;
- Inventory; and
Officers can search vehicles after a lawful traffic stop on probable cause alone that is, without having to get a warrant.2 The general reason is because one has a lesser expectation of privacy in a motor vehicle [as] its function is transportation and it seldom serves as one s residence or the repository of personal effects 3; this is otherwise known as the automobile exception.
Example: Officers lawfully stop a vehicle. One officer shines a flashlight into the car and notices the driver move his hand from his pocket and drop a knotted party balloon beside his leg. From prior experience, the officer knows that drugs are often packaged in such a manner. Another officer sees several plastic vials with white powder and an open bag of party balloons inside the open glove compartment. The first officer reaches into the car, picks up the balloon and notices a powdery substance on it.
In this case, the officers have probable cause to reach into the vehicle because it s reasonable to believe the driver possesses illegal drugs. No warrant is required because under the automobile exception, the vehicle may be gone by the time an officer returns with a warrant, and the occupant has a lesser expectation of privacy. This would also be the case if an officer smelled the odor of marijuana coming from the vehicle while talking to the driver. Probable cause may be formed by information gained from any or all of your senses.
The best example of an emergency vehicle search is when officers enter a vehicle to rescue an infant or an animal left inside a vehicle causing distress due to extreme heat and/or cold. Under such circumstances, police officers don t need a warrant to enter the vehicle.
Search for Weapons
Officers can search a vehicle and its occupants if they have reasonable suspicion to believe the occupants might be armed with a weapon. The United States Supreme Court in Terry v. Ohio4 held that officers may conduct a pat-down search of a suspect while they re detained when they fear for their safety.
A Terry search can also be conducted of automobiles if there s reasonable suspicion to believe a weapon is inside. However, officers can only search the areas where they have reasonable suspicion to believe there s a weapon the occupant can gain immediate control of.5
Search Incident to Arrest
If the driver of the vehicle is lawfully arrested, police officers may search the arrestee and the passenger compartment of the vehicle. In other words, officers may lawfully search the arrestee, his pockets, any containers inside his pockets, the passenger compartment of the vehicle and any closed containers within the passenger compartment.6 Police officers may not search the trunk under this theory.
However, this doesn t mean officers can never search the trunk. It simply means that if officers are conducting their vehicle search under the search incident to arrest theory, they can t search the trunk under that theory. On the other hand, if during the search incident to an arrest they find probable cause to conduct a search of the trunk, they can do so under the automobile exception noted above.
Inventory searches have been deemed reasonable because they re administrative in nature and aren t investigative searches for crime-related evidence. Inventory searches serve three administrative purposes: the protection of the owner s property while it remains in police custody, the protection of the police against claims or disputes over lost or stolen property and the protection of the police from potential danger. 7
An inventory search of an automobile is permitted where the police have lawfully impounded or stored (e.g., towed) the automobile and have acted in accordance with the department s reasonable, standard policy for routinely securing and inventorying contents of an impounded vehicle. Thus, if there are no departmental rules and regulations regarding inventory searches, courts may find that the inventory search was unlawful. Some courts require that the rules and regulations be in writing.
Of course, officers may lawfully search a vehicle if they obtain voluntary consent from the driver or someone who has a reasonable expectation of privacy in the area of the vehicle to be searched. Usually, the driver can consent to the search even if they aren t the owner.
To determine whether the consent is voluntary, courts will look at the totality of the circumstances. The courts will look at factors such as the person s age, intelligence, mental and physical condition at the time, whether they re under arrest, the length and nature of other interrogation and whether they ve been advised of their right to refuse consent.8 With respect to the latter, officers aren t required to tell a driver or occupant they have the right to refuse to allow officers to search, even if they re in custody. It s merely one of the factors that will be weighed under the totality of the circumstances test. Note that many departments have specific policies and/or forms dealing with consent searches that may involve steps not necessarily required by the courts.
When conducting a consent search, officers must keep in mind a consenter may withdraw that consent at any time, and the officers must then stop the search.
These are the basic exceptions to obtaining a warrant to search a vehicle. It s important for officers know the difference between each of the legal theories described, particularly when drafting police reports or testifying in court. If officers cite the incorrect legal theory, a savvy criminal defense attorney may catch it and file a successful motion to suppress any seized evidence in a subsequent criminal hearing.
Do not construe this column as legal advice. Each officer should consult with an attorney in their jurisdiction for legal advice on any specific issue.
1 New York v. Class, 465 U.S. 106 (1986) (holding that a police officer who reached into the vehicle to remove some papers off of the dashboard in order to see the VIN which resulted in the officer obtaining crime related evidence constituted a search).
2 Maryland v. Dyson, 527 U.S. 465 (1999).
3 Cardwell v. Lewis,417 U.S. 583 (1974).
4 392 U.S. 1 (1968).
5 Michigan v. Long, 463 U.S. 1032 (1983) ( the search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief that the suspect is dangerous and the suspect may gain immediate control of weapons. ).
6 New York v. Belton, 453 U.S. 454 (1981).
7 South Dakota v. Opperman, 428 U.S. 364 (1976).
8 Schneckloth v. Bustamonte, 412 U.S. 218 (1973).