Getting Pulled Over by Police: A Guide to Warrantless Searches of Your Vehicle
When you’re pulled over by the police, unless you live in Mayberry, it’s not to tell you what a great law-abiding citizen you are (typically). However, moving to a place like Mayberry might be difficult due to it being a fictitious community from the Andy Griffith Show, which was on TV before my time. Therefore, because you live in Minnesota, knowing when police can search your vehicle and for what items when you’re pulled over is important.
As required by law, before you’re pulled over, police generally must have reasonable suspicion that you committed, are committing, or are about to commit a crime – even if you haven’t. In these situations, police have a job to do, which is to either issue you a citation or arrest you and impound your vehicle, or let you go on a warning, depending on the severity of the alleged offense. The question is: Can police search your vehicle on a whim for evidence of a crime? Are police allowed to search anywhere in the vehicle and for anything they want? How far are police allowed to go? Do they have limits?
The Fourth Amendment of the U.S. Constitution requires police to get a warrant before searching and seizing a person and their property. The purpose of the Fourth Amendment is to protect people from “unreasonable” searches and seizures by the government. The key word is “unreasonable”. Why? Because over the course of about the past century, courts have carved out numerous exceptions to the warrant requirement, especially for vehicles, deeming certain types of vehicle searches reasonable under certain circumstances, thereby circumventing the need for police to get a warrant before searching your vehicle and seizing your property. Some say that these exceptions have diluted the warrant requirement to the point to where the rule has become the exception. Others say the exceptions are needed for police to effectively do their job.
What do I think? In practice, many of these are commonly misused by police to search for evidence of a crime, which can unreasonably infringe upon a person’s legitimate privacy interests.
This blog is to guide you, in plain language, through the mind-bending maze of exceptions to the warrant requirement as applied to vehicle searches. To help you understand them, I’ve organized the exceptions by how restrictive each is for police in terms of the scope of the search and the burden of proof required for police to conduct the warrantless search. I start with the least restrictive exception (i.e. police can conduct the most expansive search of the vehicle) at the top of the list and work my way down to the most restrictive (i.e. police can conduct a very limited search) at the bottom. For each exception, I provide a definition of the rule, the burden of proof required, and the permissible scope of the search.
Note: More than one exception may apply to a particular situation depending on the facts and circumstances. Further, during the course of a warrantless search based on one exception, evidence may be uncovered that triggers another exception, giving rise to a more expansive search. In addition, these exceptions are much more nuanced than discussed here. This guide just serves as a general overview of the different exceptions. This is why hiring an attorney who understands the complicated interplay and application of these exceptions is important to determining whether a search of you or a love one’s vehicle was unlawful.
At the outset, it’s important to note that most of the exceptions are analyzed against a “reasonable person” standard, which is a common legal standard used by American courts to determine whether a warrantless vehicle search was valid. The “reasonable person” is basically a hypothetical person who, in a nutshell, acts the way you’d expect them to act under similar circumstances in the particular situation being analyzed. Courts give great weight to previous similar court cases to maintain a level of consistency. The standard is annoyingly vague, I know, but that’s because it’s is so fact-driven and needs to be flexible in order to apply to many different scenarios. In other words, depending on the facts and circumstances, many situations can be analyzed in two very different convincing ways under the reasonable person standard.
Here’s the guide:
- Probable Cause (or Automobile) Exception
Why least restrictive? Police can search entire vehicle for evidence of a crime, includes trunk; need probable cause.
Rule: As the most expansive (and straightforward) exception to the warrant requirement, when police pull over a vehicle, they are allowed to search the entire vehicle if probable cause is established throughout the course of the stop. Put another way, if police have enough information to get a warrant, they may search the vehicle as though police had gotten one.
Burden of Proof: Again, police must have probable cause for this exception to apply. Probable cause is a tougher burden than reasonable suspicion but less than beyond a reasonable doubt. These are vague standards by design and difficult to define because each is applied on a case-by-case based and evaluated by the totality of circumstances involved in each particular case. The following is a short chronological list, from highest threshold to lowest, of each standard, which will be used throughout this guide:
- Beyond a Reasonable Doubt: The burden of proof required in a court of law to establish a person’s guilt (highest burden).
- Probable Cause: The level of suspicion needed for police to make an arrest or search a person or his/her property. Based on sufficient articulable facts and circumstances, it’s the reasonable belief that a person is probably engaged in criminal activity (Example: police smell burnt marijuana coming from inside the vehicle). Police need probable cause to obtain a search or arrest warrant, unless an exception applies.
- Reasonable Suspicion: The level of suspicion needed for police to briefly stop a person (or vehicle) for a limited investigative purpose to either confirm or deny that a person is engaged in criminal activity (Example: person in high crime area runs after seeing police). Police may pat down (or frisk) a person’s outer layer of clothing to search for weapons but not drugs. Reasonable suspicion is commonly defined as more than a guess or hunch but less than probable cause. Police need to be able to point to articulable facts to establish reasonable suspicion. Reasonable suspicion may turn into probable cause in some situations, which would allow police to conduct a more expansive search or make an arrest.
Scope: The scope of this exception is the same as if police actually obtained a search warrant. Police may search any area in the vehicle capable of containing the object of the search. This includes the entire passenger area, engine compartments, trunk, and any open, closed, or locked containers. However, just like a search warrant, police may only search the areas capable of containing the object for which police are searching. For example, if police are search for a stolen TV, police may not search a glove box because a TV would presumably not fit in a glove box, whereas if police were searching for a bag of marijuana, they could search the glove box. Further, if the police have probable cause, police may enter the vehicle even if it is parked, locked, or on private property so long the vehicle is parked in the driveway (because under the law, it’s considered impliedly open to the public).
- Consent Search
Why second least restrictive? Police can potentially search entire vehicle (if person consents), trunk could be included; don’t need probable cause or reasonable suspicion.
Rule: For a person’s consent to be valid upon a peace officer’s request to search a vehicle, police must have reasonable suspicion (to pull over a car in the first place) and the person’s consent must be voluntary. Further, police are not allowed to use deceit (or lie) to obtain consent. Under some circumstances, consent may be given through a person’s non-verbal conduct, but it must be very clear (e.g. voluntarily handing keys to a peace officer). Importantly, a person has the right to refuse when police ask for the person’s consent. But police are under no obligation to inform the person of his/her right to refuse, which is an interesting (if not dubious) rule. Once consent is given, it’s important to note that a person can withdraw consent at any time, which means police must stop the search unless another exceptions applies. Also, the person giving consent must have authority to give consent to search the vehicle (e.g. like an owner or regular driver) or the police must reasonably believe the person has the authority to give consent.
Burden of Proof: In cases in which the validity of the consent is in question, the prosecution (not the defense) must prove by the preponderance of the evidence that consent was given freely and voluntarily. In other words, police may not threaten or coerce a person into giving consent. This is a question of fact for the factfinder (e.g. jury) to decide. Several factors are taken into consideration, none of which are solely determinative. These factors include but are not limited to a person’s age, level of education, experience, intelligence, whether the person was informed of his/her right to refuse, duration and conditions of detention or interrogation, whether threats were made, prior experience with the criminal justice system, and whether physical or mental coercion was used. As I alluded to, this is not an exhaustive list, other factors may very well apply.
Scope: The scope of a consent search is limited to the terms of the consent, which is a question of reasonableness: What a reasonable person would have understood the search to encompass via the exchange between police and the person involved. In other words, police do not have unfettered discretion in conducting a vehicle search pursuant to a person’s consent. Rather, only the areas that reasonably appear to fall within the scope of the search may be searched. For example, for larger items, only areas capable of storing a larger item may be searched (i.e. not the glove box or smaller containers), whereas for smaller items, areas capable of storing smaller items may be searched. This may or may not include the trunk and containers located inside.
- Search Incident to a Lawful Arrest
Why third least restrictive? Police can search passenger area of vehicle, but not trunk; need probable cause to arrest the person.
Rule: Once the police arrest a person(s) upon a lawful vehicle stop, the police are allowed to conduct a warrantless search of the person(s) in the vehicle and the area of the vehicle within the person(s) immediate control, which includes open and closed containers. The purpose of the search must be for evidence of a crime related to the arrest or to protect the police from possible weapons a person could access in the vehicle. Whether the person(s) arrested was the driver or passenger does not affect the search. Unlike the Automobile exception, the search must be conducted at the same time the arrest was made. In other words, a significant amount of time cannot pass between the arrest and the search.
Burden of Proof: For a vehicle search incident to a lawful arrest to be valid, one of two (or both) type of search must be justified at the time the search was conducted: (1) Possibility of Access Search: An arrested person could possibly access a weapon from the vehicle that endangers police; or (2) Offense Related Search: Police reasonably believe evidence relevant to the crime for which a person is being arrested may be found in the vehicle. A Possibility of Access Search is permitted where an arrested person is unsecured (i.e. not handcuffed or otherwise subdued) and within reaching distance of the passenger area of the vehicle where a weapon could be located (i.e. front and back seats). An Offense Related Search is permitted where the police reasonably believe the vehicle contains evidence of a crime related to the arrest. If neither of these two justifications exist to search the vehicle at the time the arrest was made, then police may not conduct a search of the vehicle when a lawful arrest is made.
Scope: In general, police may search the entire passenger area of a vehicle under this exception. This includes the front and back seats and may include containers depending on the size and weight of the object. Under the Possibility of Access Search, police may search anywhere within the passenger area that could reasonably store a weapon and is accessible to the person being arrested (if he/she is unsecured at the time of arrest). Under the Offense Related Search, police may search anywhere within the passenger area reasonably capable of containing evidence related to the crime for which the person is being arrested. In other words, if a person is pulled over by police and is being arrested based on a warrant, police may not search the vehicle for drugs because that would not be related to the offense for which the person is being arrested. Lastly, police may not search the trunk of a vehicle under this exception, unless another exception applies.
- Protective Weapons Search
Why fourth least restrictive? Police can search passenger area of vehicle just for weapons, but not trunk; need reasonable suspicion.
Rule: Once police lawfully pull over a vehicle based on reasonable suspicion, to conduct a protective weapons search, police must have additional reasonable suspicion that a person in the vehicle is armed with a weapon. In such a situation, police may order the person(s) out of the vehicle, and (1) conduct a limited pat-down search of a person’s outer clothing to discover weapons, and (2) search the vehicle’s areas reasonably likely to contain a weapon. On a side note, police are not required to determine whether a person has a permit to carry a pistol before conducting a protective weapons search.
Burden of Proof: As stated above, police must have reasonable suspicion (less than probable cause) to conduct a warrantless protective weapons search. In these situations, Minnesota law asks whether a reasonable person under the same circumstances as the peace officer believe his/her life was in danger because of a person(s) in the vehicle being armed. However, the peace officer does not need to actually be in fear. Rather, the test is based on the specific reasonable inferences the peace officer can make in light of the officer’s experience. In application, courts take into consideration a number of factors, which include but are not limited to the police’s reason for stopping the vehicle, how a person(s) is acting, how many people are in the vehicle, police’s past experience with the person(s), the location of the stop and time of day, and the peace officer’s belief he/she is in danger due to a person(s) in the vehicle being armed. It’s important to note that even if the specific peace officer(s) involved in the search has an improper motive or bases the search on the wrong grounds, the search will still be valid if there’s an objective basis for the search (applying the factors above) that is independent from individual officer(s)’s misguided reason for conducting the search. However, police still have to show a safety concern existed at the time of the search.
Scope: The controlling justification for this exception is strictly police safety and the safety of others nearby, as opposed to a more expansive search for evidence of a crime (although such evidence may be discovered in the course of the search, which may give rise to a more thorough search). Therefore, the scope of the search is limited to determining whether a weapon is present (1) on the vehicle occupant(s), and (2) in the vehicle within reaching distance of the occupants that would pose a safety risk to police. As for the occupant(s), police may only pat-down the outer clothing to feel for objects that could reasonably be a weapon, such as guns, knives, or other objects, which may include hard objects not readily discernable to police. If the peace officer feels something that could reasonably be a weapon, the officer may only then reach into the clothing to recover it. As for the vehicle, police may only search areas reasonably capable of concealing a weapon, which may include the front and back seats, the floor, glove box, center console, and containers. In other words, police may not search areas too small to reasonably contain the types of weapons that would threaten police safety. As a general rule, courts are reluctant to allow the possibility of a razor blade as a basis for the search, unless the specific facts and circumstances suggest otherwise, because then the exception would be potentially limitless. Lastly, police may not search the trunk of a vehicle because any weapon in the trunk would not be readily accessible to a person once he/she was released and permitted to re-enter the vehicle.
- Plain View Search and Seizure of Evidence
Why fifth least restrictive? Police are limited to what they can see in plain view in the vehicle, no trunk, no passenger area not in plain view.
Rule: This exception to the warrant requirement is pretty straightforward: After police pull over a vehicle, the items and objects that police can see in the vehicle, which are in plain view upon the police approaching the vehicle, may be seized and used against the person in court (if the items and objects are incriminating in nature, obviously).
Burden of Proof: For this exception to be valid, police must (1) have a lawful right to be where they’re at when they see the evidence (e.g. lawful vehicle stop based on reasonable suspicion); (2) have a lawful right to access the place at where the evidence is located (e.g. people have a lesser expectation of privacy in a vehicle than in a home, so police may access the inside of a vehicle to seize evidence, but not a home under the Plain View Doctrine); and (3) be able to immediately discern the incriminating nature of the object/item to be seized (e.g. probable cause to seize the property in the vehicle is immediately established by police merely seeing the object/item).
Scope: The scope of a Plain View search is limited to what police can observe from standing outside the vehicle. In other words, the search is limited to what police can see in plain view in the passenger area of a vehicle (i.e. front and back seats). Police may shine a flashlight into the vehicle to observe the passenger area (i.e. front and back seats). Needless to say, police may not search the trunk because the inside of a trunk is not in plain view. However, if evidence of a crime is uncovered due to the evidence being in plain view, another exception may apply to expand the scope of the search to the trunk, the occupants of the vehicle, and other areas not in plain view.
- Inventory Search
Why sixth least restrictive? Not an investigative search for evidence for a crime, police just catalog items in an impounded vehicle.
Rule: When police lawfully impound a vehicle, they are allowed to search the vehicle to: (1) protect the owner’s property; (2) insure the police against claims of lost, stolen, or damaged property; and (3) protect police from possible dangerous items. The inventory search is a non-criminal procedure conducted for administrative purposes rather than investigative purposes. Put another way, the goal of the search is not to uncover evidence of a crime, it’s to catalog the vehicle’s items (in theory, anyway). The search must be conducted in accordance with the police department’s policy in conducting inventory of a vehicle, and can’t be used as a front for an investigative search for evidence of a crime.
Burden of Proof: Once a vehicle is lawfully impounded, police need neither reasonable suspicion nor probable cause to conduct an inventory search (because it’s an administrative non-criminal search, or supposed to be). Even if the police suspect evidence of a crime will be revealed during an inventory search, the search will be valid so long as it’s conducted in line with the department’s policy. Interestingly, the department’s policy does not have to be written, but having a written policy is obviously better.
Scope: The search must be conducted in accordance with the police department’s policy in conducting inventory of a vehicle. And the search must be conducted within a “reasonable time” after the vehicle was lawfully impounded, which is much more a term of art than science, depending on the specific facts and circumstances surrounding the impoundment. Police are not permitted unfettered discretion in conducting an inventory search, but a departmental policy that allows for an “all-or-nothing” search is permissible, which seems like a fine (imaginary) line. Further, police are allowed discretion in opening any closed (and locked) containers (e.g. purse or gym bag) so long as police discretion is exercised in line with a criteria outlined in the department’s policy. Department policies typically allow police to search all the open areas of a vehicle, such as the glove box, opening closed (and locked) containers, the trunk, and under the front and back seats. However, police may not listen to audio recordings found in the vehicle, examine documents (but police may read documents for the limited purpose of identifying them for inventory), remove car parts, or search hidden areas. It’s important to note that if police happen to discover evidence of a crime during a lawful inventory search, it could be a basis for a more expansive investigative search for evidence of a crime.
- Medical Emergency Search
Why most restrictive? Not an investigative search for evidence of a crime; police are just supposed to enter vehicle to render aid to person in need of medical attention.
Rule: When police find an injured or unconscious person in a vehicle, they are allowed to enter the vehicle for the limited purpose of rendering aid. In the process, if police discover evidence of a crime in plain view in the vehicle, that evidence is admissible under the plain view exception to the warrant requirement.
Burden of Proof: Because of the nature of an emergency situation, police do not need reasonable suspicion or probable cause to conduct an emergency search of a vehicle. Rather, they just need to reasonably believe an unconscious or injured person is in need of emergency assistance. Therefore, this exception is fairly limited, depending how one looks at it, because police are not allowed (or supposed) to look for evidence of a crime – just help the person in need. To establish that a person’s consent was valid, Minnesota law applies a two-step test: (1) Was the specific officer motivated to provide aid, and (2) would a reasonable person under the same circumstances have thought an emergency existed. Both prongs of this test must be satisfied for the warrantless emergency search to be valid.
Scope: The scope of the emergency search depends on the circumstances, which is a less than helpful description, I know. But in general, police are allowed to enter the vehicle to find information regarding the cause of the injured or unconscious person’s condition and personal identification. This may or may not include searching the front and back seats, glove box, center console, containers and bags in the vehicle, the person’s pockets, and clothes. If the police uncover evidence of crime during the search, that could be a basis to conduct a more thorough search. However, police cannot merely use the emergency search as a front to search for evidence of a crime. Rather, they must actually believe an emergency existed.