I’ve had several friends ask me about the ability of police to search their automobile when they get pulled over, no doubt worried about the cases of moonshine they keep stashed in the trunk or just curious about the extent of their constitutional rights. Confusion in this area of law is rampant, and for good reason. Automobile search law is a mess. The Utah Supreme Court basically admits it in this case from 1990, saying “the fourth amendment, especially in the context of automobile searches, has been the source of much confusion among judges, lawyers, and police.”
And hip-hop artists, it turns out. When, Jay-Z gets pulled over for “doing 55 in a 54,” in his song 99 Problems, he has the following exchange with the officer:
“Do you mind if I look round the car a little bit?”
Well my glove compartment is locked so is the trunk and the back
And I know my rights so you gon’ need a warrant for that
“Aren’t you sharp as a tack are some type of lawyer or something?”
“Or somebody important or something?”
Nah I ain’t passed the bar but I know a little bit
Enough that you won’t illegally search my sh*t
While I applaud his assertion of civil rights, Jay-Z is wrong. Police can’t search your home without a warrant issued by a judge, but car searches are different. They don’t require a warrant. “Why?” you ask. Good question. Both are searches. Both intrude on a person’s “papers and effects,” which are protected by the 4th Amendment. But a car, at least a good one, is mobile. Police can’t go running off to get a warrant from a judge lest the car and all the evidence in it drive away in the interim. That’s been the reasoning of the Supreme Court at least.
What police do need to search your car is “probable cause.” That is, they have to have a good reason to think that evidence of a crime will be found in it. So if you were pulled over for speeding, that in itself does not provide probable cause to search your car, because there’s no evidence of speeding hidden in your car somewhere. Still, as many of you have no doubt discovered, the police often want to get all up in your papers and effects anyway. Cue the classic lines: ” Any drugs or weapons? No? Then you mind if I look around a little bit?”
You see, police can do all the searching they want, even without probable cause, if they have your consent. (Consent is a whole different issue, which I want to write about soon, but let’s leave it for now). If you say “no thank you” (which you should), what happens then? Well, that might be the end of it. That often is the end of it. But, if the officer really has a certain feeling about you, a feeling that doesn’t amount to probable cause but that makes her really want to search your car, the officer has another ace up her sleeve, and this is actually a really troubling ace to be up her sleeve. It’s called the “inventory search.”
This is how it goes: the courts have decided that you can be arrested for any crime at all when the officer saw you commit it. (See the Utah statute). So, even though the speeding didn’t give the officer probable cause to search your car, it does give him probable cause to arrest you. After you’re arrested, what’s to be done with your car, oh woeful speeder? It can’t just be left there on the side of the highway, so it gets impounded by the police. Now the police have custody of your car, and they are allowed to do an “inventory search” of it, to document everything you have in there so that you can’t later claim that someone stole it or damaged it while it was in police custody. (You might notice some painfully circular logic here, but, again, let’s leave it for now. It’s well-established Supreme Court precedent.)
And if that wasn’t enough, there’s another exception to the probable cause requirement that comes into play here. An officer can ask you and your passengers out of the car to pat you down for weapons, and search the passenger area of the car for weapons if he has a “reasonable belief” that you’re dangerous (see the Utah case State v. Schlosser). And if he happens to find anything incriminating in the process, well…
Bottom line, when the officer pulls you over because she saw you commit a traffic offense, she very likely has legal authority to eventually search your car using an arrest and inventory search, or perhaps a “weapons search.” So leave the moonshine at home.
PS: After I explain this, some people ask “Then why shouldn’t I consent to the search? If there’s an easy way and a hard way to get my car searched, why not just take the easy way?” It’s a reasonable question, but what I explained above is the legal authority to perform a car search; the practical realities are much different. Not many officers want to arrest you for going “55 in a 54,” spend their afternoon hauling you off to jail, booking you, and impounding your car, just to rifle through that junk under your seats. They would have to be pretty damn sure you’ve got contraband to go through all that trouble, and if they’re pretty damn sure you’ve got contraband, they probably have probable cause and don’t need your consent anyway. Inventory searches do happen, and, when used as an end-run around the constitutional requirement for probable cause, they are very troubling, but a polite but firm refusal to grant consent at the outset often ends the matter. Further, forcing the officers to do an arrest and inventory search, or a “weapons” search, or a search ostensibly based on probable cause, might provide means to exclude the evidence in court. If you freely grant consent to search, that’s hard to argue.
PPS: While adding one last link to this post, I discovered (a little sadly) that a law professor has already written and published an in-depth analysis of the legal issues related to 99 Problems’ second verse. It’s a good read, though.