Illegal Car Search By Police?

Attorney Marsh

Police, Searches, and Your Car – Oh My!

This post ties into a previous post on Search Warrant vs Warrant of Arrest. Why? That’s because we’re dealing with a search. Same rules apply in this post as the previous post. I know, at this point, most people can recite Jay-Z’s song 99 Problems from heart. That’s great and maybe it has some valid points. But still you need to know roughly what the police can and can’t do. A few clients have come into my office after having themselves and their car searched by police. A recent client got arrested for Possession of Marijuana under 2 oz. She was search and her car was searched. Let’s call her Julie.

Julie’s Story

Julie came into my office and she was pretty upset that she got a POM (Possession of Marijuana) ticket. POM tickets aren’t the end of the world. A lot depends on how much you had on you when the police found it. Back to the story… Julie was driving around in the car with her boyfriend. Julie and her boyfriend were headed to dinner and had just smoked a bowl. Julie’s car had a tail light out and she was stopped by the County Sheriff.

When the Sheriff got next to the car, she could smell the weed. Obviously, burnt marijuana has a very distinct smell. The Sheriff asked Julie some questions and asked where the marijuana was. Julie’s bowl was in the front center console for the world to see. Julie didn’t answer at first and she told me she was very scared. The Sheriff searched the car. Julie eventually told the Sheriff where the marijuana was Julie was arrested for POM. Was this an illegal car search by police? No. Let me tell you why.

Illegal Car Search By Police

Basic Idea Behind Car Searches

Basically, all searches and seizures without a Search Warrant are presumed to be illegal. It’s in the 4th Amendment of the U.S. Constitution. However, there are many exceptions to the search warrant requirement that help police. Some of the Court recognized exceptions to needing a Search Warrant are:

  1. Plain View – If the police see something illegal in front of their eyes then they don’t need a warrant.
  2. Consent – This one is very basic. This is where the police ask you to search your car and you give them permission. NEVER GIVE THEM PERMISSION. MAKE THEM GET A SEARCH WARRANT.
  3. Motor Vehicle – The motor vehicle exception applies to the interior of the car. The idea behind this exception is that police may search because a car is moveable. If the police had to wait for a search warrant, a person and the evidence of a crime could be moved across city, county, or state lines.
  4. Exigency – This is the legal term for immediate need to act. Cars may be subject to exigency because, similar to exception number two, the evidence can be moved away, destroyed, or hidden.
  5. Search Incident to Arrest – If a crime is committed in the officer’s presence, the officer may arrest. Part of an arrest includes the search of a person, their body, and the area right around them. Usually this type of search happens after you’re in cuffs and the police look for illegal items or weapons you might have on you.

Where the Rubber Meets the Road

Most car searches fall under one or more of the above exceptions. The view of the Courts is that there is a reduced expectation of privacy in your car. As a result, the police are given more leeway in their ability to search and seize!

In Julie’s case above, the police had plain view because of the bowl in the center console. In addition, Julie gave the officer permission to search her car. Once you give police permission to search, this opens the door (literally) to them being able to search the whole car. More importantly, once you give consent to search and are arrested, you are CANNOT challenge the search later on. This means if you give permission to search, you can’t later claim that the search was illegal. Don’t have these items at all and, especially so, DON’T KEEP these items in your car out in the open.

Summary

The Fourth Amendment protects you from illegal searches and seizures by police. However, the Courts have created many exceptions to the requirement that police get a warrant. I like to think of it as Swiss cheese. There can be more holes than cheese. The important thing is to know your rights. Don’t consent to searches, and don’t give police the exception they are looking for.