Can the police search your car without a warrant? The truth is while the police generally need a warrant to search your person, residence and personal property, they need only possess probable cause to search your car. Probable cause means that the police have good reason to believe they will find some evidence of criminal activity in your car. Common examples of probable cause include the smell of marijuana coming from your vehicle, observation of any contraband inside your car or a credible, corroborated report that your car contains something illegal. Without probable cause the police need a warrant or your consent to search your car.
WHY DON’T THE POLICE NEED A WARRANT?
Your car is inherently mobile, meaning it can move and move quickly. The Supreme Court has said that your cars mobility creates an “exigent circumstance” – in this case a situation which requires swift action to prevent the destruction of evidence – which makes a warrant unnecessary. So if they have probable cause the police can search your car without a warrant and without your consent.
WHAT IF THE COPS DO NOT HAVE PROBABLE CAUSE TO SEARCH YOUR CAR?
If the police do not possess probable or a warrant, there are three additional situations in which they can search your car. Those are:
- A Search Incident to Arrest
- An Inventory Search
- A Consent Search
SEARCH INCIDENT TO ARREST
The cops can search your car incident to your arrest if, and only if, you have been arrested and the police have a reasonable suspicion that they will find evidence of the crime for which they arrested you. Reasonable suspicion is like probable cause but it requires less suspicion and less evidence. Reasonable suspicion to search your car must be related to the crime for which you were arrested. If you are arrested for Operating While Intoxicated and the police see a beer can in your car, they would possess a reasonable suspicion of finding evidence of your operating while intoxicated and could search your car. On the other hand, if you are arrested for driving on a suspended license, reasonable suspicion to search likely would not exist since the only real evidence is the fact you were driving.
If you have been arrested and the police impound your car they can perform a search to inventory it’s contents. Inventory searches are quite common. To be valid the police have an inventory search policy and they must follow the policy. Inventory searches protect the police and the tow company from claims that property taken from the vehicle.
When the police want to search your car but have no legal justification for it, they will ask for your consent to search. Your consent makes any otherwise unlawful search, lawful. Anytime you give consent you give the police the legal authority to search. Even if the police have an independent legal basis to search your car they may ask for your consent to absolutely ensure the lawfulness of the search. Which bring us to the next important question:
WHAT TO DO IF THE POLICE WANT YOUR CONSENT TO SEARCH YOUR CAR?
If the police ask for your consent to search your car you may give it or refuse. You cannot be arrested for refusing and you will not face any legal penalties. The 4th Amendment protects your RIGHT to refuse a search. A refusal is not an admission nor evidence of guilt. There are many reasons to refuse to give your consent. Perhaps, you just want to be on your way. Maybe you have something illegal in your car. Whatever the reason you do not have to give your consent. Refusing a search is YOUR RIGHT!
When you refuse the cops may threaten arrest, tell you its no big deal if you have something illegal in the car or tell you they have some other basis to search. If the police have another basis they will search anyway and there is no need to give your consent. Do not try and evaluate whether the police have a legal basis for searching your car. Even if they do you can still refuse. REFUSAL IS YOUR RIGHT!
If the police claim they will not arrest you it is probably a lie. Remember, consent makes an otherwise unlawful search lawful. The officer’s goal is to get your consent, search your car and then arrest you. If you refuse consent and the police search your car anyway then your attorney can file a motion to suppress whatever the police find. If the search was unlawful the evidence will be thrown out. The case will be dismissed if there is no additional evidence.
If you do give your consent you are also free to REVOKE it at anytime. If the police are searching and you decide enough is enough, you can politely tell them you revoke your consent and they must stop searching. Your consent, refusal or revocation is important and you should try to ensure that it is recorded in some fashion. Many cops have dash cams and body mics. Make sure you communicate loudly and clearly so your words are captured by the officer’s body mic. This will assist your attorney.
THE BOTTOM LINE
You should always remain calm and collected. Be polite and courteous. Remember your rights. You have the RIGHT to REFUSE consent to search. You have the RIGHT to REVOKE previously given consent. Once you refuse ask. “Are you detaining me or am I free to leave?” If you are free to leave, then leave. If you are not, then wait patiently and SILENTLY. The police can search your car without a warrant but you NEVER have to consent!