Can the Police Search My Car when I'm Stopped?

I can't tell you how common it is for clients to come to me with all sorts of charges that emerged from a search of their automobiles. There is almost a limitless variety of contraband that people can and do conceal in their cars as they commute from place to place. From narcotics, to concealed weapons, to illegal alcohol; police officers routinely find these items through vehicle searches.

Automobile searches are as complicated a field of criminal law as any you will find, and the law is constantly changing with various state and federal cases addressing specific fact patters and slight variations on the existing law. But certain points are well settled, and this posting will provide a cursory overview. Remember though, that there is no substitute for sitting down with an experienced criminal defense lawyer to discuss your specific case.

Code §19.2-59 provides that "No officer of the law or any other person shall search any place, thing or person, except by virtue of and under a warrant issued by a proper officer." Obviously, an automobile would qualify as a "thing", so it would appear that your car cannot be searched without a warrant. Unfortunately, courts have carved out an exception to the warrant requirement, which is known broadly enough as the "automobile exception." The cases that form the bedrock of this exception have come in the last 50 years in response to the proliferation of automobiles as the primary means of transit in this country.

So what is the "automobile exception", and how broad is it? Well, first and foremost, officers always have a right to seize contraband items that are in "plain view." So if an officer walks up to your vehicle and sees narcotics through the window, he can seize them (and take other actions, which will be discussed later).

But even if an officer cannot see the contraband with his own eyes, he can search an automobile if there is probable cause that the vehicle contains evidence of criminal activity (see United States v. Ross, 456 U.S. 798). So if the police pull you over and smell marijuana emanating from the vehicle, they can search any part of the vehicle where evidence of the marijuana might be found.

In addition, even where there is no probable cause that the vehicle contains evidence of a crime, police may search any part of the vehicle within immediate control of an individual being placed under arrest. (see Michigan v. Long, 463 U.S. 1042). This is ostensibly for officer safety. By way of example, this would allow a search of the entire driver compartment of a vehicle after removing and arresting the driver. The same would apply for a passenger being arrested. The discovery of contraband items in this limited search would probably constitute probable cause to search the entire vehicle. It is important to note, however, that the search incident to arrest must be based upon a charge which would actually result in arrest. For example, an officer cannot stop someone for speeding, place them under arrest, and thereby gain authority to search the driver's compartment of the vehicle. This is simply because there is no reason to arrest someone for speeding.

One type of search that is always allowed is a consent search; in other words, where the driver voluntarily allows the officers to search the vehicle. The key is that the consent must be voluntary. Consent is not voluntary if the officers gain consent through unlawful coercion. For example, if a vehicle is stopped for speeding, the officers are allowed to ask permission to search the vehicle. If the driver says no, however, the officers cannot detain the vehicle while waiting for a drug dog, with the hopes that the dog will give probable cause to search. This is because the duration of the stop cannot exceed that which would be reasonable to ascertain the nature of the violation (e.g. speeding), and write the appropriate summons. If, however, the drug dog could arrive within the reasonable time for issuance of such a summons, then the dog would be allowed to sniff around the car while the other officer issues the summons. The key is that the vehicle cannot be held longer than reasonable under the circumstances of the underlying stop.

Similarly, the officers cannot tell the driver that if he does not consent to a search, the vehicle will be held until the drug dog arrives, because it would not be legal to hold the vehicle for that period of time. Under these circumstances, the driver's consent to the search would probably be viewed as not voluntary, and therefore not valid.

One of the most glaring elements of the automobile exception to the search warrant are "inventory searches" of vehicles taken into police custody by virtue of being towed. These inventories are ostensibly for the protection of the vehicle owner so that no personal items within the vehicle are lost or stolen at impound. But inventory searches are exceedingly thorough, and require no probable cause that any contraband is within the automobile.

A high percentage of the contraband that ultimately finds its way into criminal proceedings comes from automobile stops. If you or someone you love is the subject of a criminal charge, and the basis of the charge was a stop and search of an automobile, please call our office right away. There is much to be done in addressing an automobile search. While courts have tried hard to limit the application of the search warrant requirement, the Constitution is still on your side.

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