The Fourth Amendment of the Constitution of the United States bars unlawful searches and seizures. Generally, searches and seizures that are made without a warrant are unconstitutional and invalid. This is commonly referred to as the ''Fourth Amendment warrant requirement.'' A search warrant authorizes law enforcement personnel to search particular and specified places for particular and specified items. In the context of searches and seizures of cars and other vehicles, search warrants usually are not needed or used.

However, there are several exceptions to the warrant requirement that permit warrantless searches, such as the ''automobile exception'' and a ''search incident to lawful arrest.''

In addition, if police are given consent to search then no search warrant is necessary.

Most often, searches of cars take place without a warrant and as an incident to a lawful arrest of the driver, or even a passenger.

For an arrest to be lawful, it must be supported by probable cause. The police have probable cause to arrest a suspect when, at the moment the arrest is made, they have a reasonable belief that the suspect has committed or is committing a crime.

Once an arrest has been made, the police can search the body of the person who was arrested for weapons or illegal goods. In addition, the police can search the car, including the trunk, if there is a reasonable belief that they hold illegal or stolen goods.

Evidence obtained by police through an illegal search and seizure cannot be used in a criminal action against a defendant. This doctrine is known as the exclusionary rule.

Be cautious. The law pertaining to searches and seizures is complex. In order to challenge it successfully, you need to understand not only the laws of your state, but also the common law, that is, laws made through court decisions. After researching the matter, if you are still uncertain of the law or how it might be applied to your situation, you should consider seeking the help of an experienced criminal law or defense attorney.

Searches after Motorists are Stopped

When evidence is taken from a car by police after a motorist has been stopped, the issue of whether that evidence can be used against the driver in a later criminal trial turns on:

  • The validity of the police officer's stop of the motorist, and
  • Whether the facts and circumstances of the stop provide an exception to the warrant requirement

With respect to vehicles, there is less strict enforcement of the warrant requirement because:

  • The mobile nature of automobiles creates exigent circumstances -- situations that require immediate action, and
  • A person's expectation of privacy with respect to his or her car is lower than the expectation of privacy with respect to his or her home

Nevertheless, it is likely that there must be strict compliance with the warrant requirements for the search of a car that is parked on private property and there are no exigent circumstances indicating that there is not enough time to obtain a valid search warrant and still ensure that evidence is not destroyed.

In addition, there is an important distinction between the ability of the police to stop and seize a moving vehicle and the right of the police to approach and request information from the driver or passengers of a stationary vehicle:

  • When a car is stationary, an officer does not have to have a reasonable suspicion to approach it. The police can exercise their rights to inquire, that is, the right to approach and request information
  • When a car is momentarily stopped, for example, at a traffic light, but is otherwise in the general flow of traffic, the car is not "stationary" for these purposes

Body Searches Incident to Lawful Arrests

When there is a lawful custodial arrest for a traffic violation, a full search of the person is not only an exception to the Fourth Amendment's warrant requirement, but the search is also ''reasonable'' under the Fourth Amendment.

The authority to search incident to a lawful arrest focuses on:

  • The need to disarm the suspect to take him or her into custody
  • The need to preserve evidence found on the suspect's person for later use at trial, and
  • The need to ensure the arresting officer's safety during the time he or she is in contact with the arrestee

Searches Following Traffic Infractions or Violations

As a general rule, a speeding or traffic violation, by itself, will not justify the search of a vehicle. That is so because a driver's excessive speed does not indicate that the driver is violent, and it does not give the police officer any reason to think that he is in danger of being assaulted.

However, this rule is not without exceptions. If, for example, the officer has a reasonable belief that he or she might be assaulted by the driver, or if the motorist fails to produce a driver's license or produces a forged one, a search by the officer normally will be valid.

To stop a vehicle, an officer needs only a reasonable suspicion that the driver is committing or has committed a traffic infraction. In most cases, the reasonable suspicion arises from the officer's own observations of the driver's behavior. However, the police have the authority to stop a vehicle based upon the tip of an anonymous driver or pedestrian.

An officer's suspicion might be reasonable even when the officer makes a mistake of fact, such as when the officer's computer mistakenly reports that the driver's license is under suspension.

However, where the officer stops a driver based upon a mistake of law, the officer's suspicion is not reasonable and the stop will be invalidated. For example, an officer's suspicion is not reasonable and there can be no justifiable stop of a driver's car when the officer mistakenly believes that it is unlawful to have a turn signal activated but fail to make a turn, and the driver's car is stopped for not making the turn as indicated.

Independent of traffic violations, if a police officer has a reasonable suspicion that a motorist is either committing or preparing to commit a crime, the officer is justified in stopping the vehicle.

Searches of Cars

A search incident to a suspect's lawful arrest, for the purpose of removing any weapons that might be used to resist arrest or effect escape or preventing concealment or destruction of evidence, is not limited to the suspect's person, but extends to the area within his her immediate control where he or she might reach to grab a weapon or evidence.

When a police officer has made a lawful arrest for a traffic infraction, a search of the vehicle is reasonable if it is conducted incident to arrest, that is, the search is at the same time and place of the arrest, or very near to, and the defendant and the vehicle must be within the immediate control of the defendant at the time of the arrest.

If the search of a defendant's body after a traffic arrest is later invalidated, any search of the car that took place after the body search will likewise be invalidated.

For example:

  • The arrest of a driver for the illegal possession of a firearm (''gun'' or ''handgun'') after an arrest for a traffic offense was invalidated because the officer's search of the car's glove compartment (''glove box''), which held the handgun, was unreasonable in that it went beyond the scope of a search incident to arrest for a traffic infraction
  • A thorough search under a car seat following a motorist's arrest on charges of being an unlicensed operator and driving an uninspected and unregistered vehicle is unreasonable and unauthorized

The ''Automobile'' Exception

One of the exceptions to the Fourth Amendment's warrant requirement is the so-called ''automobile'' exception. When a car is stopped by police, a warrantless search of the car is proper under this exception if the police have probable cause to believe that it contains evidence of a crime in light of an exigency, or need for immediate action, arising out of the likely disappearance of the vehicle and the resulting destruction of the evidence.

In addition to exigency, the police must show that the vehicle was indeed mobile. All that must be shown to satisfy this requirement is that the vehicle is operational, or ''capable of being driven away.''

What parts of the car can be searched and what can be seized or taken? In most instances, a valid search of a vehicle can include closed and locked containers within the car, such as packages or luggage. In addition, while there must be a nexus, or connection, between the crime and the search, there is no rigid rule that the search be limited only to items relating to crimes leading to the defendant's arrest.

For example, when a driver is stopped for a traffic violation, the police can search the driver's person and the car if the police have a reasonable belief or probable cause to believe that there is a gun in the driver's possession or in the car.

When and where does the search have to happen? When there is probable cause to search a vehicle under the automobile exception, it is not necessary that the search take place immediately. So, a valid search can occur long after the initial stop and even after the car has been moved to the police station or impound lot.

''Inventory Searches'' of Automobiles

When a car is impounded, the police can search it for the purposes of taking an inventory of its contents. It is not necessary that the search be conducted for the purpose of seeking evidence of a crime. Rather, inventory searches serve to:

  • Protect the car owner's property while it remains in police custody
  • Protect the police against claims or disputes over lost or stolen property
  • Protect the police from potential danger arising from materials contained in the car

An inventory search must be reasonable to be valid under the Fourth Amendment. Often, the key element here is the scope of the search. While the police can search the entire car and catalog its contents, they are limited in what they can do with the contents.

For example, an inventory search was declared invalid and unconstitutional when the police viewed a video tape in a defendant's car after he was arrested for public lewdness, with the tape showing the defendant exposing himself to a small child. The search was invalid because the viewing of the tape was unnecessary to ensure its return to the defendant and it did not further any valid objective of an inventory search.

In addition, for an inventory search to be valid, it must be made pursuant to standardized police procedures. That is so because police officers are not permitted to determine the scope of such a search. The prosecution must prove that an inventory search was conducted pursuant to standard police procedures or guidelines.

''Frisk'' of a Vehicle and its Occupants

After stopping a car for a traffic violation or because of a reasonable suspicion of criminal activity, the police are permitted to conduct a frisk for weapons if he or she has, or develops, a reasonable suspicion that the car's driver or passengers might be armed or dangerous.

If officers have reasonable suspicion for a frisk, they can frisk not only the suspect, but also the areas in the vehicle over which the suspect would have immediate control and which could contain a weapon, such as under the seat or a bag on a seat. Officers can frisk these areas of the vehicle even if the suspect is no longer in the vehicle.

Consent to Search

When a driver gives a police officer permission to search his or her car, the warrant requirement is, of course, not necessary. Consent can be either ''express'' or ''implied.''

Implied consent

most often comes into play when a driver is suspected of driving under the influence of alcohol or similar impairment (''DUI'' or ''DWI''). Many states have statutes that specify that when an officer has a reasonable suspicion that a driver is impaired, the driver's use of the public streets is implied consent to search of the driver's person and vehicle.

Express consent

arises when a police officer asks for and receives permission to search the driver's car. When such consent is given, the officer usually is permitted to open a closed container in the car if it might reasonably hold the object of the search.

When express consent has been given, the Fourth Amendment is satisfied when it is objectively reasonable for the officer to believe that the scope of the suspect's consent permits the officer to open a particular container within the automobile.

Of course, even if express consent to search is given, a driver can limit the scope of the search. So, for example, if an officer requests permission to search a driver's car, the driver can reply, ''yes, but you cannot search the trunk.''- Absent probable cause to believe that the trunk contains illegal or stolen goods or evidence of a crime, if the officer searches the trunk the search likely will be declared invalid.

What the Police Can Do During a Stop

Once police officers have lawfully stopped a vehicle, either because of probable cause for a traffic infraction or reasonable suspicion of criminal activity, they can:

  • Order the occupants out of the vehicle
  • Ask to see the driver's license, registration, and other relevant information, such as an insurance card ("proof of insurance")
  • Conduct a limited search to gain access to the vehicle identification number (''VIN'')
  • Conduct a dog sniff (''canine sniff''), so long as the sniff does not extend the length of the stop
  • Take actions reasonably related to the original reason for stopping the vehicle or related to suspicions that develop during the stop
  • Frisk for weapons if they have or develop a reasonable suspicion that the occupants may be armed or dangerous, and
  • Search the vehicle if the stop provides probable cause for the officers to believe it contains illegal or stolen goods or evidence of a crime
Related Resources on Lawyers.comsm
- Plain View Searches of Vehicles
- Canine Sniff During a Traffic Stop
- Crime and Criminal Law Basics
- Criminal Law: Crime Definition FAQs
- DUI-DWI articles and information
- Criminal Law: Selecting a Good Lawyer
- Find a Criminal Lawyer in your area
- Visit our Traffic Citations message board or Criminal Law message board for more help

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