The 4th Amendment to the United States Constitution is a very powerful thing, a liberty and a right that each of us possess.
The 4th Amendment reads:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The government, through law enforcement, regularly searches “persons, houses, papers, and effects” of its citizens. The properties most commonly searched are houses, cars, and cell phones/cell phone records. Courts treat each of these differently so this post is meant to just address searches of your vehicle.
How do the police get into your car to conduct a search?
The law makes it easier for the police to search your car than your home.
Driver Consent
If the police have stopped you, they may ask you for permission to search your car. If you give them permission to search, make sure you understand what you are giving them permission to do. If you tell them they can search your trunk, they cannot necessarily search the passenger compartment of your vehicle. The best practice may be just to politely refuse all searches so that there is no misunderstanding about what you are allowing the police to search. Know that almost all roadside encounters with the police are recorded by either the police body camera, their in-car camera or both. While you may be upset, remember that someone else may watch this video later to make decisions about any criminal charges that might come out of a search of your car. A lawyer can help explain how the law might apply to any concerns you might have.
Plain View/Odor of Marijuana
A search of your vehicle can also occur if the police see evidence of a crime in “plain view” or they can smell the odor of marijuana in your car. Either one of these situations gives the police broad ability to search your car. They can make you get out of the car and detain you and they can also do the same to any passengers in your car. The police may also pat you down for weapons. Think before you drive. Know your passengers. If someone has an open bottle of alcohol in your backseat and the police see it, that may be enough to allow them to search your entire vehicle without your permission. Marijuana is still illegal in South Carolina and just the scent of it in your car or on you will probably also lead to a car search. A lawyer can help you if your car has been searched because the police could see or smell what they believed to be a violation of the law during a traffic stop.
Search Incident to Arrest
If you have warrants or get arrested for something during a vehicle stop, the police can search your car “incident to arrest.” The courts have gotten much stricter about these types of searches in recent years. Now the police can only search your vehicle incident to arrest if the person they are arresting can reach the passenger compartment of the car or if the police have reason to believe evidence of the crime you are being arrested for is in your car. If you are being arrested for Driving Under the Influence, they cannot search your car for evidence of anything other than that. Of course, if they tow your car, the police will do an inventory search that will allow them to search your entire car. This can be confusing, so talking to a lawyer may help you make sense of your particular situation.
Exigent Circumstances
Exigent means emergency. Exigent circumstances can allow law enforcement to seize and search your car if (1) probable cause exists and (2) law enforcement reasonably believes evidence may be destroyed before a search warrant can be obtained. There may be other situations where the government would claim there was an emergency that would require a seizure of your car. A lawyer can help you understand whether or not any of these situations might apply to you.
Judicial Warrant
None of the situations above require a search warrant for your car to be searched. Usually search warrants for vehicles are tied to a search of your home. The police almost always ask to also search any vehicles located on the property when they are asking a judge for a search warrant of your residence.
Finally, call a lawyer. You’ll want someone to lean on for advice quickly. The courts continue to find that cars are protected differently than homes or telephones. A lawyer can help you understand what might happen next. Call KD Trial Lawyers’s Criminal Defense attorneys at (864) 660-0465 and let us help.
Blog post by attorney Jennifer E. Wells. Read more about Jennifer here.
The posts on this website/blog are published as a service to our clients and friends. They are intended to provide general information only and should not be construed to be formal legal advice regarding any specific situation and should not be construed as forming an attorney-client relationship. Success in the past does not indicate the likelihood of success in any future representation.
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