VEHICLE SEARCHES
One of the duties of law enforcement officers is traffic enforcement. Generally, when an officer sees a violation of the traffic laws the officer has probable cause to stop the vehicle. Probable cause to stop the vehicle arises out of the officer’s knowledge that an infraction of the traffic laws has occurred and a belief that the infraction was caused by the driver of the vehicle seen violating the law. Probable cause requires a clear link between an illegal act and an individual. For example, when an officer sees a vehicle speeding, the officer has a clear link between the driver of the vehicle and the violation of the law.
Upon stopping a vehicle for a traffic infraction the officer must use extreme care when approaching the occupants of the vehicle. Although the majority of traffic stops result in an irritated driver leaving with a citation, there is always a possibility that a driver will react to the stop with violence. The reason for the violence could be merely that the driver is emotionally out of control. It could also be something more serious: an individual who is transporting evidence of criminal activity in his/her vehicle or an individual on the run from the law.
The Fourth Amendment to the Constitution of the United States requires that law enforcement only conduct a search after obtaining a warrant from the local magistrate. However, the United States Supreme Court has developed several exceptions to that rule. Each of these exceptions to the warrant requirement will still require that the officer establish probable cause to justify the search.
Law enforcement who merely suspect that a vehicle contains evidence of criminal activity are limited in their options for searching the vehicle. Reasonable suspicion is a lower standard of proof than probable cause. It requires more than a “gut feeling” or a “hunch.” Reasonable suspicion requires that an officer be able to clearly articulate his/her reasons for being suspicious. For example, an officer could support being reasonably suspicious if he stops a vehicle transporting two teenage males at 3A.M. through a neighborhood several miles from the address shown on the driver’s license, soon after several reports of burglaries were reported in the neighborhood. Although nothing concrete links the occupants to the burglaries the officer can explain why he is suspicious of them.
Reasonable suspicion that criminal activity is afoot will only support asking the occupants of the vehicle to provide identification and a general explanation of their actions or reason for being in the location where they were stopped. This low-level questioning is known as a stop or a Terry stop. Additionally, if the officer reasonably believes that an individual presents a threat of danger, the officer may conduct a frisk of the individual. A frisk is a limited pat down of the exterior of an individual’s clothing to feel for weapons. A frisk is not to be used as justification for a thorough search of the individual.
If a law enforcement officer has a reasonable suspicion that a vehicle contains evidence of criminal activity, but has not established probable cause to support his belief that evidence of criminal activity will be found in the vehicle, the officer may ask the driver of the vehicle for permission to search the vehicle. If another occupant of the vehicle is the owner of the vehicle, however, that is the individual who must give permission to search. Individuals are not required to give their consent to search, but law enforcement is not required to advise them of their right to refuse. If an individual refuses to consent to the search, their refusal does not create probable cause to believe that the vehicle contains evidence of criminal activity. When an individual refuses to consent to a search, law enforcement must generally release the individual and their vehicle without further delay.
Probable cause to support a search of the vehicle requires something to clearly link the vehicle to a criminal act beyond a traffic infraction. Sometimes, as an officer approaches a vehicle that the officer has stopped for a traffic infraction, the officer will see evidence of a criminal act lying out in plain view. For example, an officer may see a clear bag of a green botanical substance or an object used for self-administering illegal substances (drug paraphernalia) lying on the dashboard of the vehicle. Or, an officer may smell an odor of marijuana (plain smell). Upon seeing what appears to be evidence of criminal activity in plain view, the officer has a clear link between the occupant(s) of the vehicle and criminal activity. The officer has probable cause to believe that the vehicle contains evidence of criminal activity and may search the vehicle. While plain view is not a search, evidence left in plain view will establish the probable cause necessary to support a vehicle search. A vehicle search is one of the exceptions to the warrant clause.
Another exception to the warrant clause is the search incident to arrest. Whenever an officer has lawfully placed an individual under arrest, the officer may conduct a contemporaneous search of the individual’s wingspan. The term wingspan is not defined to be the length that the arrested individual’s arms can reach. The term is defined to be the individual’s immediate surroundings. When an individual is taken from a car and placed under arrest, their wingspan includes the entire passenger portion of the vehicle. Most searches of vehicles arise out of this exception to the warrant clause.
A final exception to the warrant clause that is applicable to vehicle searches is a search based on exigent (emergency) circumstances. If an officer has reason to believe that an individual is in serious danger or is placing others in serious danger, the officer may act to prevent that serious harm. For example, if an officer is given reliable information that a vehicle is transporting a bomb, the officer may stop the vehicle and may take the action necessary to locate and disarm the bomb.