Q & A – Search Warrants

  1. Q: If I get stopped on the interstate, will the police search my car, regardless of whether or not I consent?

A: In interstate drug stop cases, sometimes drivers deny consent to search the vehicle and the vehicle is searched regardless of consent. However, law enforcement may not search a vehicle without consent unless the officer has a lawful reason and the authority to do so.

First consent must be voluntary. This means that law enforcement cannot coerce consent. Some law enforcement agencies will use written consent forms so that the individual who is stopped and detained may have the option of providing written consent. Other law enforcement agencies do not feel that consent forms are necessary, especially if the entire stop is being recorded by the police officer’s dash camera.

Second, if the driver or passenger of the vehicle does not give consent to search the vehicle, then the officer must have probable cause to search the vehicle. Probable cause is a legal standard whereby the officer must demonstrate well-grounded facts that a crime has been committed. An officer’s hunch or suspicions are not enough to search without consent or without a search warrant. The officer must be able to articulate, reasonable objective facts as to why he believes he will find contraband in the vehicle if he searches it. Courts have found that probable cause to search a vehicle may include the odor of marijuana, an alert and indication of a drug dog, or an admission by an occupant of the vehicle that there is a small amount of marijuana or other controlled substance in the vehicle. If an officer has probable cause to search the vehicle, the officer may search the entire vehicle. This includes both the trunk and the glove box. The officer who has probable cause to search the vehicle may also search packages and containers within the vehicle.

Third, it is important to recognize that while the standard of probable cause is not that high, it must still be respected by law enforcement. If there is no probable cause to search, the search and all items that it turned up will be suppressed as violations of the 4th and 14th amendments of the United States Constitution.

Fourth, the standard of probable cause is determined by a totality of the circumstances. This is the same for reasonable suspicion which allows law enforcement to detain someone while trying to establish probable cause to search. Sometimes when law enforcement officials are attempting to establish probable cause to search or reasonable suspicion to detain someone, they will infringe upon constitutional rights. Sometimes due to the intimidating presence of law enforcement or just plain nervousness, individuals fail to assert their constitutional rights, and either give law enforcement permission to search their vehicles or provide statements and information to law enforcement which, while seemingly innocuous on its face, is used to establish probable cause, and in some cases obtain a conviction.

Getting back to the original question, if an individual denies consent to search, law enforcement may not search the vehicle unless they have probable cause to believe that a crime has taken place.

  1. Q: Do police have to get a warrant to search my car?

A: The short answer is no. Due to the automobile exception, law enforcement officers do not need a warrant to search automobiles travelling on public roads and highways. The reasoning behind this is that while we certainly maintain an expectation of privacy in our personal effects and in our residences, we do not retain that same expectation of privacy when we are in public.

When we travel on roads and highways, we expect to see other people and government officials, as the roads and highways often belong to the government. It is important to recognize that though you have a lesser expectation of privacy on a public road or highway, does not mean you have no expectation of privacy or to be free from unreasonable searches and seizures. For this reason, individuals travelling on a highway have a right to deny consent to the search of their vehicles, and also have the right to be free from unlawful detentions. Put simply, just because police do not need a warrant to search your car, doesn’t mean that they automatically get to do it without consent or a legal reason to do so. In summary, police do not need a warrant to search your car when your car is on public roads and highways, or at a public location in general. However, this does not mean that law enforcement may search vehicles at will without meeting certain specified legal standards.

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