The Fourth Amendment to the U.S. Constitution prohibits the police from conducting traffic stops if the stops are not justified by a reasonable suspicion of criminal conduct. Vehicle searches must generally be justified by probable cause, with some exceptions. This means that the police must have “reasonable suspicion” first to stop a car and then “probable cause” to search the car after stopping it.
Often, the police pull a driver over to the side of the road in order to ticket the driver for a moving violation such as speeding. Every year, approximately 20% of traffic stops result in additional criminal charges because the police search and arrest the occupants of the vehicle. So, 1 in 5 traffic stops lead to misdemeanor or felony charges for the driver or passengers of the vehicle.
Probable cause means that it is more probable than not that a search of the car will produce evidence of criminal activity. Under the law, an officer must have probable cause to believe that a search will produce evidence of a crime before the officer conducts the search. An officer must be able to point to concrete facts that establish both reasonable suspicion and probable cause in order to conduct a stop or a search. If a person has not, in fact, committed a moving violation, such as driving over the speed limit, then the police do not have the right to stop the person’s vehicle at all.
When May the Police Pull Over A Driver?
The Fourth Amendment’s “reasonableness” requirement prohibits the police from stopping a person and pulling them over for an arbitrary reason or a reason that is not related to suspected criminal activity. The Fourth Amendment allows the police to pull over a vehicle only if the driver is suspected of having committed a traffic violation, such as speeding, or is otherwise engaged in criminal activity. Of course, a driver may be stopped if there is a warrant pending for the driver’s arrest.
The police may pull over a vehicle only if they have “reasonable suspicion.” “Reasonable suspicion” means a reasonable belief, based on facts that are specific and concrete, that a crime, or a traffic violation, has been committed.
Keep in mind, however, that once a person has been pulled over, the person must comply with certain police requests. The person is not free to leave even if they believe the stop was unjustified. The time to argue that the stop was illegal comes later in a court of law. The scene of the stop is not the place to argue about its legality.
Once stopped, the driver must give the police identifying information, as well as information about their vehicle registration and auto insurance. A person is also required to inform officers if firearms are present in the vehicle. If a stop is illegal, the charge of a traffic violation might be dismissed at a later time, but the driver still must comply with certain laws at the time of the stop. Again, the place to contest police conduct is later in court and not at the scene of the stop.
As a practical matter, passengers should also ask the officers if they are free to leave before doing so. However, they do not have to consent to searches or answer officer’s questions about their activities.
What May the Police Do Once They Have Stopped A Vehicle?
If the police pull over a vehicle because they have reasonable suspicion, they may then conduct an “investigative stop.” During an investigative stop, the police may inquire as to reasons for a driver’s behavior. For example, the police may question the driver as to whether the driver was aware that they were traveling above the speed limit or failed to signal a lane change. Keep in mind that the driver does not have to answer such questions. But they do have to provide identifying information.
The police may do this to confirm their suspicion of a traffic violation, such as speeding. Once the police make the investigative stop, the police must then either issue a ticket, if their suspicion of a traffic violation is confirmed. Or, if their suspicion is dispelled, they must let the driver go on their way. The police cannot pull over the driver for more time than they need to determine whether they believe that the driver either has or has not broken the law and issue a citation if that is warranted
One of the circumstances in which police can conduct a search after making an investigative stop is when the police have a reasonable suspicion that the driver or a passenger in the vehicle is armed and/or dangerous. If the police reasonably suspect that a driver or passenger is armed or dangerous, the police may do a limited “pat-down” search of the driver or a passenger to remove weapons or other items that might be used to harm the officer.
Other justifications for searches of the driver, the vehicle or passengers include the following:
- Emergencies: If the police need to search the vehicle for a blanket or other item they need in a medical emergency, this could justify a search of the vehicle;
- Plain Sight: The police can seize evidence of a crime that is in plain sight in the vehicle;
- Consent: If the driver consents to a search, the police can conduct a search;
- Plain Smell: If the police can smell the odor of controlled substances, such as marijuana, they can search the vehicle;
- Arrest: If the police arrest the driver for any valid reason, such as there is a warrant outstanding for the driver’s arrest, then they can also search the driver and the vehicle;
- Inventory: If the vehicle has to be impounded for a legitimate reason, the police can conduct an inventory of its contents.
When Can Police Search My Vehicle?
Having reasonable suspicion permits an investigative stop and issuance of a ticket, but does not justify a search of the person’s vehicle. Once the ticket has been written, the police need additional reasonable suspicion of criminal activity over and above the reason for the stop to justify holding the vehicle for more time and searching it.
Probable cause means there is a “fair probability” the search will reveal evidence of a crime. Once officers have probable cause to believe a search will produce evidence of criminal activity, they can conduct the search. For example, the police officer might spot illegal drugs on the dashboard, in plain view, or a passenger holding an open container of alcohol. Or, the officer might detect the odor of marijuana in the cabin of the vehicle. These would be circumstances that could give the police probable cause to conduct an expanded search.
The other exceptions listed above can also serve as justifications for searching the vehicle.
Where Can the Police Search in Your Car?
Once the police have probable cause for a search, the search must be confined to those areas of the vehicle where the evidence of criminal activity is likely to be found. Therefore, if the police have probable cause to believe that evidence of a crime is in the trunk, then the police may search the trunk, but not the remainder of the vehicle.
Also, if a person who is arrested is able to reach into the vehicle to obtain a weapon, then the police may conduct a search of the entire area within the person’s reach for a weapon; this might include the glove compartment or a center console. Locations that are in plain sight, like the dashboard or cupholders, can be searched because any evidence lying within plain sight can be seized.
When Can Police Search an Entire Vehicle?
There are circumstances in which the police would be justified in searching the entire vehicle, including the trunk. For example, the police may have probable cause to suspect that the driver of a vehicle is transporting a large amount of a controlled substance in the car that is likely to be in the trunk.
Or, the police may find a glassine bag of marijuana lying on the dashboard and then reasonably believe that similar packages of marijuana could be found anywhere in the car, including the trunk. The police could then search the vehicle including the trunk.
If a driver who has been stopped consents to a search of the vehicle, the police may search the vehicle. Keep in mind that a driver does not have to consent to a search under any circumstances. There is no penalty to refusing to consent to a search, so a driver does not need to consent. The failure of a driver to consent to a search does not give the police probable cause to search any part of the vehicle.
Again, the other justifications mentioned above can also justify searches and seizures.
Can the Police Search Other Vehicle Occupants?
If the police have arrested the driver of a vehicle, then they may search other occupants of the vehicle, but, again, only if they have probable cause or one of the other recognized justifications.
If the police have a reasonable suspicion that a passenger is armed and dangerous, then the police may conduct a “pat-down” search of the passenger to find concealed weapons. If the police have probable cause to believe that evidence of a crime might be found on the person of a passenger, the police may search the passenger for that evidence.
What Happens if a Search is Illegal?
If it turns out that the police did not have probable cause to search, then any evidence the search turns up must be excluded from criminal proceedings brought against the person who was in possession of the evidence.
The rule that forbids the use of evidence that is the product of an illegal search or seizure at trial is known as the “exclusionary rule.” A criminal defendant must file a motion (a request for an order) in advance of their trial, known as a motion to suppress, to obtain an order to prevent the use of the illegally seized evidence at trial.
Do I Need the Help of a Lawyer for an Illegal Search?
If you believe that the police made an unlawful search of your or your vehicle after an investigative stop, then you should contact an experienced traffic violation attorney.
An experienced criminal defense attorney can analyze the facts of your case and assist you with filing a motion to suppress, if the facts justify it. This attorney can also represent you at hearings including the hearing of the motion to suppress, and at trial.