Q : Suppose the officer wants to search my car?

A : Ask why the officer wants to conduct a search. If you have absolutely nothing to hide, expediency might dictate that you let the search proceed. If you don't want the search to proceed, you do not have to consent. Usually, the officer is not permitted to conduct the search unless you consent, the officer has probable cause (see below), or the officer reasonably believes that he must search the auto for his or her own protection. Ask courteously whether the officer has a search warrant or if you are under arrest. If the officer replies that you are under arrest, ask for an explanation.

Q : What if the officer insists on searching my car?

A : Don't interfere. You can always challenge the legitimacy of the search later in court.

Q : Can the police legitimately search my vehicle without a warrant?

A : That depends on the circumstances. The police would not usually have the right to search your automobile when you are stopped only for a minor traffic offense such as speeding, but if the violation requires that you be taken into custody (for example, a "Driving Under the Influence" [DUI] arrest or driving with a suspended license), the search would generally be permitted. If the officer has arrested you, the officer does not need a warrant to pat down your body in searching for weapons.

In general, when an arrest is not involved, the police have more latitude to search a vehicle than to search a home. The U.S. Supreme Court recognizes an automobile exception to the Fourth Amendment's protection against warrantless searches. The Court has held that a person expects less privacy in an automobile than at home. (No one ever said "A man's Chevy is his castle.") 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. For a warrantless search to be valid, however, the officer must have probable cause. (See the "Criminal Justice" chapter for more details on this topic.)

Q : What is probable cause?

A : Probable cause, in this context, is a reasonable basis for the officer to believe that the vehicle contains incriminating evidence, so that the officer is legally justified in searching it.

Q : What part of the vehicle may the police search if they have probable cause?

A : Generally, the police officer may search the immediate area at the driver's command, that is, under and around the front seat. The law is always changing. Sometimes state constitutions offer greater protection against searches than the U.S. Constitution. Therefore, if you have questions about a search the police have made of your vehicle, it is best to consult a lawyer in your state

Q : May the officer search in my glove compartment?

A : Yes, the Supreme Court has held that such a warrantless search is permissible. The reason is that the glove compartment is within the arrested driver's reach.

Q : May the officer search a closed container inside my car?

A : Police are permitted to search containers or packages found during a legitimate warrantless search of a vehicle. The container must be one that might reasonably contain evidence of a crime for which the officer had probable cause to search the vehicle in the first place. In 1982, the Supreme Court ruled that the police do not need a warrant to search closed containers found in the passenger compartment of an automobile whose occupant is under arrest.


Family Legal Guide
Copyright © 2000, 2002 American Bar Association