Posted on February 10th, 2014 in CELL PHONE
, Driver's License
, EMAIL NEWSLETTER
, FOURTH AMENDMENT
, ILLEGAL SEARCH
, TRAFFIC STOP
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By Ted Levitt, NMA Member
If you’ve ever been pulled over for a traffic stop you’ve probably wondered if the officer could search your vehicle without a warrant as well as how far that search could go. I decided to look into it. I am not a lawyer, but I have spent many hours doing legal research on this topic. The following two-part article lays out my understanding of the most current laws and court rulings but is not to be construed as legal advice.
The Fourth Amendment to our Constitution protects us from unreasonable search and seizure. It reads as follows:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Varying interpretations of what is “reasonable” have caused most of the confusion with this doctrine. To further muddy the waters, the courts have repeatedly redefined the circumstances that allow warrantless vehicle searches. Generally, an officer can conduct a warrantless search of your vehicle under any of the following conditions:
- You consent to the search
- The officer has probable cause to believe there is incriminating evidence in your vehicle that directly relates to the reason for the stop other than the traffic violation (see the Chimel & Knowles cases later in this article)
- The officer reasonably believes that a vehicle search is necessary for his or her own protection
- You have been arrested for DUI or other state-specified offenses such as an accident that resulted in an injury or fatality
- Exigent circumstances
If a search is ruled as illegal, evidence or information obtained by the search may not be used to prosecute you under the “exclusionary rule” because it is a violation of the Fourth Amendment. (See Elkins v U.S., 364 U.S. 643  and Mapp v Ohio, 367 U.S. 643 )
In most states, search and seizure rules are less strict for a motor vehicle search than for one’s home or office. The courts generally allow an officer to search those areas in a vehicle “immediately within the driver’s reach” (Chimel v California, 395 U.S. 752 ) which include the glove compartment and the vicinity of the front and back seats. This also includes the center console or other compartments on the dash, head liner, sun visor or door panels.
This justification has caused much confusion for police, prosecutors, defense lawyers and the public, not to mention the abuses that ensue. There are several key cases that deal with the definition and legality of what justifiable “probable cause” for a search is and is not:
Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest …when these justifications are absent, a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies. Police must demonstrate an actual and continued threat to their safety posed by an arrestee, in order to justify a warrantless vehicle search incident to arrest.” (Arizona v Gant, 556 U.S. 332 )
The key point here is “incident to arrest.” Under current case law, if the alleged offense is a “jailable offense,” the search is legal without a search warrant. Following this line of thought, since most traffic offenses are not jailable/arrestable offenses, a vehicle search without your consent, or probable cause, would be illegal. Exceptions could include DUI or other state specified offenses such as an accident that causes an injury or fatality.
Note that U.S. Supreme Court has ruled that your answers, or lack thereof, to an officer’s questions and your body language may meet the probable cause requirement. You are not required to answer any of the officer’s questions. You only need to be polite and show a valid driver’s license, valid proof of insurance, valid vehicle safety inspection sticker and in some states the vehicle registration.
Some courts have allowed the search of a vehicle’s occupants’ cell phones. The legality of this depends on where you live. The U.S. 7th Circuit Court of Appeals has ruled that police may search a cell phone found during a legal search incident to an arrest. States outside this jurisdiction have split on the issue. The U.S. Supreme Court recently heard oral arguments on this issue and a decision should be coming later this year. To avoid this situation lock your phone with a pass code, which will require the police to secure a search warrant before reviewing its contents.
What happens when a driver exits the vehicle and locks the doors during a traffic stop? This creates problems for the police officer. Once the driver is out of the vehicle, the officer can’t use safety concerns to justify a search. Further, if the officer orders the driver back into the vehicle it may be argued that he illegally and artificially created justification to search where no justification existed without his direct order and intimidation under his “color of law.” (US v Van Syckle, 957 F. Supp. 844 , US v Williams, 419 F. 3d 1029 [9th Cir. 2005])
To avoid the above situation, police generally tell occupants not to exit the vehicle. The police may argue that ordering you back into the car was for everyone’s safety. If you are pulled over I suggest you have all the necessary documents ready before the officer walks up to your vehicle. That way he cannot see what is in your closed console or glove box, purse or wallet, thus preventing him from seeing something you don’t want him to and negating him from using the “for my safety” or “in plain view” justification due to your reaching for something.
To me, the most significant case on vehicle searches is Knowles v Iowa (525 U.S. 113 ) in which the U.S. Supreme Court ruled that police may not search a vehicle without a search warrant after a traffic violation has been written or the defendant has been placed in a patrol car. The court found that given the type of stop, there were no grounds for the policeman to believe that his safety was in jeopardy or that there was evidence in danger of being destroyed. Therefore, he had no probable cause to perform a search without Knowles’ consent.
The court stated, “Once Knowles was stopped for speeding and issued a citation; all the evidence necessary to prosecute that offense had been obtained. No further evidence of excessive speed was going to be found either on the person of the offender or in the passenger compartment of the car.” Also, since Knowles was not in custody, there was no custodial exception to permit a search.
Editor’s Note: Next week look for Part 2, “How the ‘Plain View’ Doctrine Relates to Warrantless Vehicle Searches”