The U.S. Constitution’s Fourth Amendment and the Florida State Constitution protect from unreasonable searches and seizures. The police may not conduct an investigative search of your car, your home, or you without probable cause, and that usually means they need a warrant.
The U.S. Supreme Court decided that the Fourth Amendment demands the following interpretation:
Police may not conduct an unreasonable search.
A search conducted without a warrant is unreasonable per se (automatically),
Unless Facts fall within one of the specifically delineated exceptions:
- Search Incident to Lawful Arrest
- Plain View
- Emergency – Hot Pursuit
- Stop & Frisk (limited pat-down)
Does Your Case Fit Into One of These Exceptions to the Warrant Requirement?
The information in this post is intended to help you understand your rights when you are confronting a police search of your car. But you should always contact an experienced criminal defense lawyer as soon as any police search is conducted. Stechschulte Nell, Attorneys at Law provide effective and aggressive criminal defense throughout Tampa – St. Petersburg for people facing criminal prosecution.
Automobile searches are among the most litigated issues in the criminal justice system. The law requiring a search warrant still applies to automobiles except when there is a reasonable risk that evidence of criminal activity will be destroyed or moved. If your car is parked in your driveway, in your garage, or on the street, with no one inside, then the police still need a valid search warrant before they can search the car.
However, when you are behind the wheel after a traffic stop, the circumstances will not allow police to go through the hour-long process of getting a warrant. To remedy that dilemma for law enforcement, the Supreme Court ruled that a police search of your vehicle is reasonable “if the police have probable cause” to believe that evidence of a crime will be discovered in the search.
If the police do not have probable cause to search the car, then they shouldn’t be able to get a warrant anyway. When a case involves a warrantless search by police of an automobile, the disputed issue becomes whether the police did have probable cause.
The “consent” exception to the warrant requirement is relied upon in more criminal arrests and prosecutions than any other. Why? Because people who are stopped by the police want to seem polite. If you consent to a police search of your home, your person, or your automobile, you cannot later claim that they searched without a warrant. You can’t complain when you agreed to the search!
Note: You have no obligation whatsoever to consent to a police search. When
the police asked, “Do you mind if I search your car?” you are lawfully allowed to say “No, thank you.”
The usual response by an officer who is initially denied consent to search is, “Well, I can just get a warrant to search if you don’t consent.” If you don’t want to be accused of possessing whatever might be in your car, your response should be, “Ok. Get the warrant.”
What happens next might be anyone of the following:
- The frustrated officer knows you called their bluff. They can’t get a warrant without probable cause. There is no search.
- The frustrated officer will go ahead and conduct an illegal search. If they find nothing, there’s not much you can do about it, practically speaking. If they find evidence of a crime, your criminal defense lawyer can move to suppress the evidence as illegal fruit of an illegal search.
- The officer might get a warrant, in which case your criminal defense lawyer might still be able to find grounds to challenge the search or the validity of the warrant.
Plain View Exception
The plain view exception to the warrant requirement applies when evidence of a crime is visible to the officer when he is positioned in an authorized location. For example, if the police officer spots a kilo of cocaine on your passenger seat as they are standing on the road next to your car, then they can seize the cocaine, and arrest probably you.
But, if the police enter your locked garage without probable cause, and while in the garage they spot the kilo of cocaine on the passenger seat, the seizure of that cocaine would be illegal because they were not lawfully in a position to have had a “plain view” of the drugs.
Search Incident to Arrest
The “search incident to arrest” exception to the warrant requirement generally refers to a situation in which you are being arrested following a traffic stop. As the police are in the process of lawfully arresting you, they may search your vehicle only if
- you are unrestrained, and
- you are close enough to the vehicle to reach for a weapon or to tamper with evidence, or
- the police have probable cause to believe evidence related to the crime for which you are being arrested will be found in the car,
- (or another exception to the warrant requirement applies).
This rule was established by the U.S. Supreme Court in Arizona v. Gant, 556 U.S. 332 (2009) in response to what the Court determined to be police exploiting the former rule known as the Belton rule. In the Gant ruling, the Court placed a stricter requirement on when police could search a vehicle. Unlike the Belton rule that police (incorrectly) thought permitted them to search any car if they arrested the occupants, the new Gant permits the search only when the arrestee is still able to reach for a weapon or tamper with the evidence in the car. Once the car occupant is cuffed, or placed in the rear of a locked cruiser, the arrestee is no longer a threat to either the police or the evidence.
Another situation in which the police can search your car without a warrant is when they are responsible for the care and custody of the vehicle after arresting you. If you are lawfully arrested during a traffic stop on the side of a public road when you were alone in the car, the police are not allowed to simply abandon your vehicle. Instead, it is their responsibility (the law says) to take reasonable steps to safeguard your property.
But, to make sure they take care of every piece of your property, they need to do an inventory. Otherwise, you might claim something valuable was missing from the vehicle when you are released from custody. Therefore, the police can search every inch of the car as part of the follow-up of your arrest.
The exception does not automatically apply if you have a passenger with you who has a valid driver’s license and your permission to drive the car. In that case, the police cannot seize your vehicle and use the “inventory search” exception to dig up evidence.
Keep Reading> Can Police Search Your Car During a Traffic Stop?
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