To answer this question and a series of others that I will address over the coming days, let’s begin with a quote of the United States Constitution – 4th Amendment:
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.
Now, that language is quite heavy and is definitely not written in the plain language with which each of us speaks on a daily basis, so let me rephrase it in a way that is more readable and understandable:
An individual, his or her house, documentation, and personal property shall not be searched through or possessed for an unreasonable purpose (by the Government). Further, a warrant is required and may only be issued if probable cause that is supported by someone swearing to the truthfulness of his or her statement is presented to a Judge, and the sworn statement must specifically describe the place to be searched and the person or things to be taken.
So, to address this question, I use my experience as a former police officer and a Criminal Defense Attorney. Let me begin by describing a scenario that each of us witnesses on an almost daily basis. You are driving down the highway and see a car pulled onto the shoulder of a roadway and behind it is a black and white car with flashing red and blue lights. An officer is standing at the window of the vehicle, talking with the Driver, who is the only occupant. The officer tells the Driver that he wants to search the vehicle. What happens from here?
The general rule: An officer may stop and automobile if an officer possesses a reasonable and articulable suspicion that the motorist has violated a traffic law. Once the vehicle has pulled to the side of the road, the Fourth Amendment permits the officer to search the vehicle’s interior by looking through the windows; This is the “plain view” or “plain sight” rule that has developed in case law and is part of the “automobile exception” to the warrant requirement of the 4th Amendment.
However, the trunk of a vehicle cannot be searched unless the officer has probable cause to believe that it contains contraband or the instrumentality’s of criminal activity, and similarly, the officer does not get to look into locked containers or a locked glove compartment unless the same type of probable cause is present. When the vehicle is impounded, its contents may be inventoried without a warrant, including the contents of the trunk and any containers inside it.
The rationale for permitting warrantless searches of cars is that the mobility of automobiles would allow drivers to escape with incriminating evidence in the time it would take police to secure a search warrant. The Court has held that a person expects less privacy in an automobile than at home and when you think about it, this is reasonable-you are driving down the road in a vehicle that anyone, not just an officer, may look through the windows and see what is inside.
As the Driver of the vehicle, you may do a couple of things:
1) Consent to the search, if you have absolutely nothing to hide or conceal in the vehicle and want to speed the process along; or
2) Refuse to allow the officer to search the vehicle.
If you elect to refuse the officer’s request to search, you should ask the officer if you are under arrest, and if you are not, why he or she wants to search your vehicle. However, the officer may not give you a complete answer as to why he or she is asking to search the space. Denying an officer’s request to search is not an admission of guilt, although, the officer may tell you that if you have nothing to hide you should permit the search.
The officer may insist on searching your car. Clearly state, “I am not giving consent to this search” but do as the officer instructed. Repeatedly, but politely and firmly repeat that you are not consenting to the search, as the likelihood of the statement being recorded is great, at least under most department policies. This recording will be invaluable in a later court proceeding, should one arise. But, no matter what you do, do not interfere with the search and do not touch the officer, as either of these actions is likely to get you arrested.
Also, the officer may place you in the patrol car or even handcuff you and have you sit on the curb while conducting the search. Again, this does not mean you are under arrest but will likely be labeled as an “officer safety” tactic. This usually occurs if there is only one officer and multiple occupants to a vehicle or if the officer knows that backup is not nearby. If the officer does handcuff you, DO NOT RESIST and provide a reason to arrest you.
Another situation that may arise is that an officer instructs the occupants out of a vehicle because he is going to search it. This type of search is one based on probable cause. For example, if the officer approaches a vehicle and smells what “training and experience” tells him or her is marijuana or another illegal substance, he does not have to obtain consent to search the vehicle. But, the officer may ask for consent because then there is little room to contest the search later, except for a claim that the search was not voluntary or freely given…i.e. that the search was coerced. Under this situation, even if you refuse consent, the officer may search the vehicle anyway. Again, if this happens, do not resist and do not create problems. You may always challenge the search in court and the more cooperative you were (in following instructions) the better result you may later obtain.
The information contained in this article is not specific to any state and if you find that you or your vehicle or property has been searched or seized, you should contact a criminal defense lawyer without delay if you believe that your rights may have been violated. An good defense attorney will be able to answer your questions about what happened and determine whether you have a valid claim or case. And, it is very important that you advise your attorney of what happened as quickly as possible, especially if you are facing criminal charges as a result of the search since the evidence found as a result of an illegal search will probably be excluded from any proceedings against you.