Car search
- Thread starter Tom B
- Start date
Short answer: It all depends.
Long answer:
ASSUMING this is a standard traffic stop (ie, speeding, failure to use a turn signal, etc), and you have done nothing to give the cop probable cause (PC) to think that you have anything illegal in the vehicle, he can ASK to search your car (note: 'ask' when coming from a large man wearing a uniform and carrying a gun and who has the power and ability to haul you off to jail is a relative thing).
You legally can refuse this search.
At this point the cop has 3 options:
1. Send you on your way.
2. Obtain a warrant.
3. Perform the search anyway.
If they do #3 there is a really good chance (depending on how good the cop is at making a judge believe he had PC) that anything found in the search or any subsequent search will be excluded from your trial (exclusionary rule and the 'fruit of the poisonous tree' doctrine).
RECALL: just because YOU think the cop does not have PC does NOT give you the right to resist the search. Thats why we have courts. If it was a bad search, he'll lose the arrest and you can go ahead and sue him and his dept for a number of different things.
As to the amount of time that you can be detained at the scene without an arrest, i believe the US Supreme court has actually set a hard and fast time limit on it, and I think its something in the neighbourhood of 30 minutes.
NOTE: dept policies and state limits will vary from area to area. State supreme courts have the ability to rule in a manner that makes it 'harder' on their cops (ie, give you more rights and leeway), just not vice versa. The supreme court says 'these are the minimum standards you will afford all US citizens'...state courts can mandate that LEOs in their state afford them even more.
Hope it helps,
Mike
------------------
Long answer:
ASSUMING this is a standard traffic stop (ie, speeding, failure to use a turn signal, etc), and you have done nothing to give the cop probable cause (PC) to think that you have anything illegal in the vehicle, he can ASK to search your car (note: 'ask' when coming from a large man wearing a uniform and carrying a gun and who has the power and ability to haul you off to jail is a relative thing).
You legally can refuse this search.
At this point the cop has 3 options:
1. Send you on your way.
2. Obtain a warrant.
3. Perform the search anyway.
If they do #3 there is a really good chance (depending on how good the cop is at making a judge believe he had PC) that anything found in the search or any subsequent search will be excluded from your trial (exclusionary rule and the 'fruit of the poisonous tree' doctrine).
RECALL: just because YOU think the cop does not have PC does NOT give you the right to resist the search. Thats why we have courts. If it was a bad search, he'll lose the arrest and you can go ahead and sue him and his dept for a number of different things.
As to the amount of time that you can be detained at the scene without an arrest, i believe the US Supreme court has actually set a hard and fast time limit on it, and I think its something in the neighbourhood of 30 minutes.
NOTE: dept policies and state limits will vary from area to area. State supreme courts have the ability to rule in a manner that makes it 'harder' on their cops (ie, give you more rights and leeway), just not vice versa. The supreme court says 'these are the minimum standards you will afford all US citizens'...state courts can mandate that LEOs in their state afford them even more.
Hope it helps,
Mike
------------------
Per an attorney,
If there is no contraband in your car or on you, and you refuse, on general priciples, to allow a search, do not get out of the car. (If you do, it becomes an abandoned vehicle.) Lock the doors, crack the window, and inform the officer that you will remain in the vehicle, with hands in plain sight; that if he has probable cause, you will not resist arrest. If he does not choose to arrest you (which means he has no PC), you will give him 40 minutes to obtain a search warrant, and that when he presents the warrant you will, of course, submit to the search. If he informs you that you are under arrest, open the door, and submit to arrest. Since you have been arrested, the car can now be legally searched.
But if the arrest turns out to be without PC, even if something is found, it is false arrest and illegal.
The best advice is how not to get stopped or be asked to search in the first place.
Do NOT -
- Have "kill the pigs" bumper stickers
- Have "driver protected by Glock" bumper sticker
- Have an old, multi-color VW bus
- Have a little straggly beard, a red bandanna, dark granny glasses, and a Grateful Dead t-shirt
- Have burned out or broken lights, broken wipers, broken or cracked glass, a defective muffler, a bad tire or bent wheel, a rear deck lid tied down with wire (stolen or dangerous car?)
- Be speeding and/or weaving
- Be running other cars off the road
- Run stop signs or red lights
- Be DWB and do almost anything wrong
- Be drunk or high
- Have a gun in sight
- Have a pistol magazine, a speedloader, or even a copy of Guns & Ammo in sight (even the latter could be PC to search for a gun)
In other words, be discrete and act like coming home from church.
If there is no contraband in your car or on you, and you refuse, on general priciples, to allow a search, do not get out of the car. (If you do, it becomes an abandoned vehicle.) Lock the doors, crack the window, and inform the officer that you will remain in the vehicle, with hands in plain sight; that if he has probable cause, you will not resist arrest. If he does not choose to arrest you (which means he has no PC), you will give him 40 minutes to obtain a search warrant, and that when he presents the warrant you will, of course, submit to the search. If he informs you that you are under arrest, open the door, and submit to arrest. Since you have been arrested, the car can now be legally searched.
But if the arrest turns out to be without PC, even if something is found, it is false arrest and illegal.
The best advice is how not to get stopped or be asked to search in the first place.
Do NOT -
- Have "kill the pigs" bumper stickers
- Have "driver protected by Glock" bumper sticker
- Have an old, multi-color VW bus
- Have a little straggly beard, a red bandanna, dark granny glasses, and a Grateful Dead t-shirt
- Have burned out or broken lights, broken wipers, broken or cracked glass, a defective muffler, a bad tire or bent wheel, a rear deck lid tied down with wire (stolen or dangerous car?)
- Be speeding and/or weaving
- Be running other cars off the road
- Run stop signs or red lights
- Be DWB and do almost anything wrong
- Be drunk or high
- Have a gun in sight
- Have a pistol magazine, a speedloader, or even a copy of Guns & Ammo in sight (even the latter could be PC to search for a gun)
In other words, be discrete and act like coming home from church.
Not to wade into the deep end of the pool with the attorneys out there in TFL land, but it is my understanding that it is now "reasonable suspicion" not "probable cause" that can trigger a search in the situation of a traffic stop. Resonable suspicion being a lower standard brought about by our Supreme Court in the name of the al'mighty war on drugs. I asked this same question of a professor of mine who was an ex-federal agent for the government accounting office. He told me, if asked if I would let the officer search my car and I didn't want him to, to say "o., I would prefer that you did not." Simple and polite.
Willy
Pride of the junior college paralegals.
Willy
Pride of the junior college paralegals.
"Reasonable Suspicion" is more frequently used to justify a detention. In California it describes the actions of a police officer who is trained to detect and prevent crime. The standard is what would a reasonable police officer with similar training and experience do under the same circumstances.
A detention occurs when a person is denied their freedom of movement because the officer reasonably believes a crime has occurred or is about to occur, and the person being detained is involved.
------------------
Bruce Stanton
A detention occurs when a person is denied their freedom of movement because the officer reasonably believes a crime has occurred or is about to occur, and the person being detained is involved.
------------------
Bruce Stanton
Byron Quick
Staff In Memoriam
A gun in open view in an automobile is legal in Georgia. There is a time limit on obtaining a search warrant? A friend of mine attempted to deny permission for a search. This was on a Friday night. She was told that her car would be impounded until Monday morning if she denied permission.
Willy, I think you are right. I am not an attorney, but have discussed this issue with attorneys. Spartacus, the time is somewhat flexible. In different cases, an hour was too long, 20 minutes not long enough, 30 minutes OK; the courts do this stuff on an case-by-case basis and seem to play it by ear. As to a gun in the open, where legal, that is fine, but if you have a gun on the passenger seat, and are chatting with a nervous cop, and happen to drop your hand - ... do I need to go any further? Again, discretion.
I knew a fellow who carried a gun everywhere, all the time (he never flew on an airplane). No permit, no license, and this in a state where a permit is not obtainable for most people. His secret: discretion, and a good inside pants holster.
Don't get confused about a CCW - you have the right of self-defense whether your carrying is legal or not. Separate issues.
I knew a fellow who carried a gun everywhere, all the time (he never flew on an airplane). No permit, no license, and this in a state where a permit is not obtainable for most people. His secret: discretion, and a good inside pants holster.
Don't get confused about a CCW - you have the right of self-defense whether your carrying is legal or not. Separate issues.
Spartacus,
Although I don't mean to offend any LEOs here, I refuse to apologize in advance for the following statement: Police Officers are professional lyers. That is why you had better know your Rights, because (typically) the police will tell you whatever is expedient to their ends. I gather from your post that your friend submitted, otherwise you would have stated that her car was impounded. That's a shame. There are laws against the average citizen giving the police false information. I think that there should be a law prohibiting a police officer from issuing false information.
Although I don't mean to offend any LEOs here, I refuse to apologize in advance for the following statement: Police Officers are professional lyers. That is why you had better know your Rights, because (typically) the police will tell you whatever is expedient to their ends. I gather from your post that your friend submitted, otherwise you would have stated that her car was impounded. That's a shame. There are laws against the average citizen giving the police false information. I think that there should be a law prohibiting a police officer from issuing false information.
For Spartacus and his friend who was threatened with her car being impounded.
A certain amount of bluff is involved with this seeking of a permissive search. It was up to your friend to call the bluff and see if the officer really would impound the car.
An inconvenience maybe if he did impound the car, but the department would have to pay for the tow and the storage. If the search was fruitless, the officer would have to explain to his superiors why he spent the department's funds on a wasted search.
------------------
Bruce Stanton
A certain amount of bluff is involved with this seeking of a permissive search. It was up to your friend to call the bluff and see if the officer really would impound the car.
An inconvenience maybe if he did impound the car, but the department would have to pay for the tow and the storage. If the search was fruitless, the officer would have to explain to his superiors why he spent the department's funds on a wasted search.
------------------
Bruce Stanton
Unless a state's statutes are more restrictive, a warrantless search of a motor vehicle is permissible provided the officer's reasons for conducting the search would be sufficient for obtaining a search warrant if one were requested. This is a United States Supreme Court ruling. Unfortunately, I can't put my hand on the case title. It is an old one that dates back to rum running days of the Prohibition Era.
The purpose of the ruling is because motor vehicles are very mobile. The court did not want to burden the police with the need to get a warrant while in the meantime the "evidence" was being secreted away in another county, state, etc.
Its drawback is the officer had better know what makes good probable cause to search because the rightness of the search will most certainly be challenged in court.
An example of a warrantless search of a motor vehicle which probably would stand scrutiny would be an officer makes a traffic stop and notices a strong smell of decaying flesh coming from the trunk of the car. That, and conversation with the driver and the driver's responses may lead him to believe the victim of a homicide is secreted in the trunk.
------------------
Bruce Stanton
The purpose of the ruling is because motor vehicles are very mobile. The court did not want to burden the police with the need to get a warrant while in the meantime the "evidence" was being secreted away in another county, state, etc.
Its drawback is the officer had better know what makes good probable cause to search because the rightness of the search will most certainly be challenged in court.
An example of a warrantless search of a motor vehicle which probably would stand scrutiny would be an officer makes a traffic stop and notices a strong smell of decaying flesh coming from the trunk of the car. That, and conversation with the driver and the driver's responses may lead him to believe the victim of a homicide is secreted in the trunk.
------------------
Bruce Stanton
In California, it is pretty difficult to "impound" a vehicle that is lawfully parked. Even if it is parked on the side of a freeway, it is tagged by the Highway Patrol and only towed away after 48 or 72 hours.
An officer making up a reason to tow a car, and thus giving him the opportunity to inventory the car's contents, certainly risks much of his credibility when his sham comes to light in court.
It's not worth it to make up probable cause. Crooks do enough stupid things to cause them to fall in our lap without us having to bend the rules.
------------------
Bruce Stanton
An officer making up a reason to tow a car, and thus giving him the opportunity to inventory the car's contents, certainly risks much of his credibility when his sham comes to light in court.
It's not worth it to make up probable cause. Crooks do enough stupid things to cause them to fall in our lap without us having to bend the rules.
------------------
Bruce Stanton
Bruce from West Oz
New member
I've always joked about Western Australia being a 'Police State', but it's only after reading some of the above that I realise I wasn't joking after all.
Here in WA the police can -- and do -- search your car without the necessity for a warrant -- it isn't covered under the same clause as your home. 'Probable cause' can be a blanket statement such as, 'We're doing it to keep illicit drugs away from our children'. And if a copper tells you to get out of your car, I suggest you do it.
The latest, in an attempt to remove 'prohibited weapons' from society, is to roadblock a major country road into and out of Perth on a holiday weekend, when it's bound to be busy, and stop and search every single vehicle. And what do we hear from our civil libertarians about this?? Zip -- apart from the 'If it gets rid of just one gun it's worth it' drivel we've come to expect.
But then, we also have booze buses, too -- mobile blood alcohol testing centres that set up roadblocks and stop cars totally at random, with the driver forced to take a breath test. Refuse, and you'll be arrested on the spot.
Here in WA the police can -- and do -- search your car without the necessity for a warrant -- it isn't covered under the same clause as your home. 'Probable cause' can be a blanket statement such as, 'We're doing it to keep illicit drugs away from our children'. And if a copper tells you to get out of your car, I suggest you do it.
The latest, in an attempt to remove 'prohibited weapons' from society, is to roadblock a major country road into and out of Perth on a holiday weekend, when it's bound to be busy, and stop and search every single vehicle. And what do we hear from our civil libertarians about this?? Zip -- apart from the 'If it gets rid of just one gun it's worth it' drivel we've come to expect.
But then, we also have booze buses, too -- mobile blood alcohol testing centres that set up roadblocks and stop cars totally at random, with the driver forced to take a breath test. Refuse, and you'll be arrested on the spot.
Bruce from West Oz
New member
My apologies -- this was a repeat of the above posting -- the computer somehow 'stuttered' and sent it twice -- then told me it hadn't sent it at all!
[This message has been edited by Bruce from West Oz (edited April 10, 1999).]
[This message has been edited by Bruce from West Oz (edited April 10, 1999).]
There are times I would let the officer search with no question like if he was polite and
stated that my vehicle matched the description of one that was observed abducting a young child, no problem he could search. But if he was just being a jerk or offered no valid reason I think I would politely refuse his request and ask for a supervisor.
What do you do to prove the officer in fact searched your vehicle? All he has to do is say all he did was give you a good talking to (for 5 minutes) and never searched the car.
FWIW if you happen to be on a military installation you do not have the right to refuse a search of yourself or ehicle/equipment.
stated that my vehicle matched the description of one that was observed abducting a young child, no problem he could search. But if he was just being a jerk or offered no valid reason I think I would politely refuse his request and ask for a supervisor.
What do you do to prove the officer in fact searched your vehicle? All he has to do is say all he did was give you a good talking to (for 5 minutes) and never searched the car.
FWIW if you happen to be on a military installation you do not have the right to refuse a search of yourself or ehicle/equipment.
I discussed this matter with my wife who received a traffic ticket from a rather rude officer in a city within our county. I told her to make a complaint. She answered, "What good would it do? It's his word against mine."
I told her if he was rude to her, he undoubtedly has been rude to others. If enough people complain, his superiors will have to take note that there is something unusual about that particular officer.
With regards to the officer claiming he didn't search your car, but only chewed you out for five minutes. I don't know of many officers who will search a car without another officer to keep an eye on the driver and passengers. It is an extremely stupid officer who turns his back on the driver and passengers to look under the seats, etc. So, in this case at least one other officer knows what he or she was doing.
------------------
Bruce Stanton
[This message has been edited by bruels (edited April 11, 1999).]
[This message has been edited by bruels (edited April 11, 1999).]
I told her if he was rude to her, he undoubtedly has been rude to others. If enough people complain, his superiors will have to take note that there is something unusual about that particular officer.
With regards to the officer claiming he didn't search your car, but only chewed you out for five minutes. I don't know of many officers who will search a car without another officer to keep an eye on the driver and passengers. It is an extremely stupid officer who turns his back on the driver and passengers to look under the seats, etc. So, in this case at least one other officer knows what he or she was doing.
------------------
Bruce Stanton
[This message has been edited by bruels (edited April 11, 1999).]
[This message has been edited by bruels (edited April 11, 1999).]