When The Police Can Search You: Part Three

This is a multi-part blog post written by a criminal defense attorney dedicated to explaining the circumstances in which the police are allowed to search a person, his car, or his home. Parts one and two were about when the police can search you after they encounter suspicious activity in the street. Part one described the rules under the federal constitution and part two described the rules under New York’s constitution. This post is intended to explain the circumstances under which a police can search your car after they’ve pulled you over. This is only a general post about the issues associated with these circumstances and is not intended to substitute legal advice.

As a preliminary matter, the police have the legal right to pull over any car any time they observe a traffic infraction. This may seem like common sense, but the implication of this rule means that the police can pull you over for a traffic infraction even though they really want to pull you over for another reason. For example, suppose a narcotics officer wants to pull you over because he thinks you might have cocaine in your car and he wants to search it. However, suppose he doesn’t have enough evidence to justify pulling you over for that reason. Suppose further that he then observes you switch lanes without signaling. He has the legal right to pull you over because you didn’t signal even though he couldn’t care less about giving you a ticket for that and even though he only pulled you over because he wants to see if you have drugs in your car. In other words, pre-textual traffic stops are allowed under these circumstances.

So now that you are pulled over, what can the police do? First off, the police can always ask you for consent to search the car. You DO NOT have to consent. If you do not consent and the police search anyway, then the evidence may be suppressed if the search was illegal under the 4th Amendment. However, if you do consent, the inquiry generally ends and the evidence seized is admissible at trial against you.

Putting aside the consent issue though, the law regarding car stops is somewhat complex and it is continuously evolving. There is no warrant requirement for cars. Meaning that if the police have probable cause to believe there is contraband in the car, they can search it without having to get a warrant. This is known as the “automobile exception” to the 4th Amendment. So if the police have probable cause (meaning more likely than not) that you either committed a crime or that you are hiding contraband in the car, they can search the car incident to that arrest or suspicion. The law used to be very clear on this topic. In 1981, the Supreme Court created a “bright line” rule in New York v. Belton that basically said that if the police had probable cause to make an arrest, they can search a car without a warrant irrespective of whether evidence is readily capable of being destroyed or where the arrestee is when the search exists. After two decades of heavy criticism, the Court limited this bright line rule in a case called Arizona v. Gant, which stated that for the police to conduct a warrantless search of a car, they must be able to articulate that they had a reasonable belief that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense. This is the current law on this issue. Still, however, no warrant is needed to conduct this kinds of searches.

But what happens if the police do not have probable cause, but are suspicious of illegality. Well the inquiry is not unlike the inquiry mentioned here regarding Terry stops. If the police have reasonable suspicion that there is criminality, they can perform a limited search. However, the search is limited to the “grabbable area.” This means the police can search anywhere where the occupant of the car is capable of reaching. This is to prevent the occupant from either pulling out a weapon that can harm the police or from destroying evidence. In these situations, this means the search cannot include places like the trunk.

Car stops are among the most common interactions that the public has with the police where the 4th Amendment is implicated. It is a topic that is very complicated and the law, as you an see above, is constantly changing. If you find yourself the subject of an arrest that stems from a car stop, contact an experienced criminal defense attorney immediately.