Before discussing situations where the law allows a warrantless vehicle search, we must keep in mind the Search Warrant Rule: any search conducted without a warrant is presumptively unreasonable under the Fourth Amendment. To overcome this presumption, the prosecution must prove that a warrantless search falls into one or more exceptions to the rule.
While this article discusses searching a vehicle without a warrant, it’s essential to highlight the benefits of obtaining a warrant whenever possible.
- Makes your search and seizure nearly bulletproof.
- Provides excellent protection against being sued. The presence of probable cause typically shields you from lawsuits. When you have a warrant, an independent party has confirmed that probable cause exists.
- You likely will not need to testify at a suppression hearing.
- The burden of proof shifts to the defendant, who must demonstrate that you lacked probable cause or that the search did not meet an exception to the Search Warrant Rule.
- Four Corners Rule – A reviewing court may only consider the written sworn information in the affidavit. No written or verbal information may be considered if it’s not included in the affidavit. An exception to this rule is a Franks hearing to challenge the affiant’s credibility or the credibility of the information in your affidavit. However, courts rarely grant opportunities for a Franks hearing.
- Good Faith Exception to Exclusionary Rule has potential application when there is a warrant.
So, with that said, here are the exceptions to the Search Warrant Rule that permit warrantless vehicle searches. Each exception has developed in the courts over the years, and each may deserve its own discussion, but here they are in a nutshell.
Vehicle Exception
If there is probable cause to believe that a readily mobile vehicle located in a publicly accessible area contains evidence or contraband, an officer may search the vehicle without a warrant.
The extent of such a search is the same as if the officer had secured a warrant. However, if an officer’s probable cause pertains specifically to a container inside the vehicle, then only that container may be searched.
Search Incident to Arrest Exception
Suppose an officer makes a lawful custodial arrest in or near a vehicle. In that case, the officer may, contemporaneous with the arrest, search the vehicle’s passenger compartment if there is a reasonable belief that it contains evidence related to the crime for which the arrest was made. The search may include any containers large enough to hold evidence of the crime of arrest.
OR
If the arrestee is within reaching distance of the passenger compartment at the time of the arrest, the officer may search for weapons or means of escape.
The trunk cannot be searched unless probable cause develops to justify a search under the vehicle exception.
Terry Frisk Exception
The passenger compartment of a vehicle that has been lawfully stopped may be “frisked” for weapons if there is reasonable suspicion that criminal activity is taking place and that an occupant of the vehicle is dangerous and may gain immediate access to a weapon. Areas where an occupant could not retrieve a weapon, such as the trunk, are excluded.
Dangerous Items Left in Vehicle
If an officer has reason to believe that a dangerous item, such as a firearm, was left in a vehicle and that the item may pose a risk to public safety if left unattended, the officer may secure it for safekeeping. Any other evidence or contraband discovered while locating and securing the dangerous item may also be seized.
Inventory Exception (not a “search” in the traditional sense of looking for evidence)
A vehicle that is lawfully in law enforcement’s custody may be inventoried, as long as it follows a standardized departmental policy. Neither probable cause nor reasonable suspicion is necessary. The inventory search safeguards the owner’s property and officers from potential risks and claims regarding lost, stolen, or damaged goods. The Plain View Doctrine may apply if evidence or contraband is found during an inventory. Do not break open locked containers; instead, try to establish probable cause or secure consent.
Consent Exception
An officer may perform a warrantless vehicle search if a person with actual or apparent authority voluntarily consents. Neither probable cause nor reasonable suspicion is necessary. The specific consent outlines the scope of the search. However, if another person with equal standing is physically present and objects to the search, the consent is invalidated, and the officer may not proceed with the search.
Tip: Don’t seek consent when you are otherwise authorized to search. If the answer is “no,” it creates a hostile situation if you proceed with the search. Additionally, asking for consent when you have the authority to search may lead others to later question whether you truly had that authority.
Tip: Ask for consent in a way that gets a “yes” answer. “Do you mind if I search your vehicle?” requires a “no” answer to search.
If you have questions or situations you want to present to Brian MacMaster, email brian.macmaster@dirigosafety.com.