Should I Consent to a Search of My Vehicle?
Short Answer: No.
Long Answer: Still, no. The Fourth Amendment of the US Constitution protects an individual against unreasonable searches and seizures. Generally, a warrant, issued by a magistrate and supported by probable cause is required for a search and seizure. However, there are exceptions to this, especially as it relates to automobiles.
First, the police officer must have probable cause to believe that a traffic violation has occurred in order to stop your vehicle. What is probable cause? As it relates to an automobile, probable cause exists where a person of reasonable prudence would believe that a traffic violation has occurred. This is not a hard burden for an officer to meet, and can be met by a simple burnt out taillight, or by any other moving violation. Now, lets go over some exceptions to the warrant requirement:
Plain View: Once stopped, the officer, or officers are likely to inform you as to why you were stopped, as well as ask you for your license and registration. They do this for many reasons, one being that they will look to see if you have any outstanding warrants. Further, if they see or smell anything illegal, they may inquire about the contents of your vehicle. This is allowed under the plain view exception to the warrant requirement. To meet this exception, the officer must be lawfully present (which they would be if they were standing outside of your vehicle). Second, the item’s nature is immediately apparent without manipulation. If these two elements are met, the officer may confiscate the contraband. Further, there is also the plain smell exception, which is ultimately a wrinkle within the plain view exception to the warrant requirement. To meet this exception, the officer must be lawfully present, and the smell must be immediately apparent to the officer. An example would be when an officer pulls over a vehicle with a strong smell of marijuana coming from the car.
Terry Stop: There is another way in which an officer may find a justification to search your vehicle: a terry stop. Terry stops, also known as investigative stops, occur when an officer has reasonable suspicion (particularized and objective basis) supported by articulable facts that criminal activity may be afoot. This would allow an officer to briefly detain a person, and their vehicle, for investigative purposes. All passengers of a car are seized when an officer makes a traffic stop. Such stops must last no longer than is necessary to effectuate the stop’s purpose.
Search incident to a lawful arrest: If you are arrested, an officer may search all areas within the person’s immediate control. However, they may search outside of the person’s immediate control if: (1) There’s a clear danger that evidence may be destroyed; (2) there is an imminent threat of harm to the officers; (3) there is a reason to believe that the vehicle contains evidence of the offense of arrest, if the arrestee is secured in a police vehicle (can’t search the trunk).
More Automobile Exceptions: An officer may also search the interior of a vehicle if the arrestee is unsecured and may gain access to the vehicle’s interior. Further, as it relates to containers, if probable cause justifies the search of a vehicle, it justifies the search of the entire vehicle and its contents within the scope of the search. In other words, if the officers are looking for a gun, they can’t look inside an Altoids container as it would be impossible for a gun to be located there. Thus, such a container would be “outside of the scope” of the search.
Inventory searches: This is likely to occur in two situations: (1) the vehicle is impounded; or (2) the arrestee is booked into jail. Inventory searches are constitutional provided that (1) the regulations governing them are reasonable in scope; (2) the scope itself complies with those regulations; and (3) the search is conducted in good faith.
Consent: And here we are. Consent, the most common exception to the warrant requirement. Consent must be voluntary and intelligent. Further, consent can be valid if gained from any person with an apparent right to use or occupy the vehicle. If you are not the driver, you have no standing to contest a search of the vehicle, or of your person, if the owner of the vehicle consents to the search.
So, why shouldn’t you consent to a search? Well, if you are 100% certain that nothing illegal will be discovered, feel free to consent. However, if you are not certain, there is no positive in consenting to the search. It essentially gives the officers a pass, allowing them to gain access to an area that they would normally need a justification for entering/searching. Make the officers meet their burden. This allows an attorney to eventually challenge the search if the officer’s failed to meet their burden, which could result in the evidence of the search being inadmissible in court under the exclusionary rule.
What is the exclusionary rule? Under the exclusionary rule, evidence discovered as a result of an unlawful search and seizure is inadmissible in court proceedings against the individual whose rights were violated. This is a powerful weapon for both a criminal defense attorney as well as an individual accused of a crime. Don’t throw away such a valuable tool without first considering what was discussed above.