One minute you’re driving down the highway minding your own business.
The next minute, you’re being detained on the side of the road as a police officer is asking for permission to search your vehicle.
Don’t the police need a search warrant to perform vehicle searches in South Carolina? You’ve read articles and you’ve seen television shows where a person triumphantly demands to see the warrant and tells the officer they can’t search without one…
How much of what you’ve seen on TV or heard from friends about search and seizure law is really true?
10 Common Truths & Myths About Vehicle Searches
I often get questions from my clients about vehicle searches. Some of the things they have heard are correct, but much of it is a myth. What we see on TV or hear on the news isn’t always accurate!
For this reason, I’ve put together a list of 10 truths and myths about vehicle searches in South Carolina below.
Myth #1: If a police officer asks to search my vehicle and I don’t consent, I’ll look guilty.
Truth: Refusing a vehicle search is your legal right. It is not an admission of guilt.
Refusing to consent to a vehicle search does not automatically mean you are guilty of committing a crime, nor does it make you look guilty. It is your legal right to refuse the search as well as to remain silent. Consent cannot be implied from silence.
Some police officers will tell a motorist, “You wouldn’t refuse unless you have something to hide.” Those same police officers will later laugh at you and joke with their friends about how stupid you were to consent to a search.
Myth #2: If I consent to a vehicle search, the police officer can’t search my trunk.
Truth: When you consent to a vehicle search or if a police officer has probable cause to search, they can search any area of the car where relevant evidence may be found.
For example, if the officer has probable cause to believe you have stolen shotguns in your car, he or she can search any place in the car where shotguns could be concealed. Since a shotgun can’t be found inside your glove compartment, or inside a small plastic bin on the floor, he or she most likely wouldn’t be able to search there. The point is that the search must be reasonable. It isn’t reasonable to look for something in a place it couldn’t possibly be found.
On the other hand, a police officer could walk a drug-sniffing dog around your car. If the dog hits on any part of the vehicle, the law says that they now have probable cause to search any part of your car where drugs might be found including the glove box, trunk, or small containers.
Myth #3: Police officers will go and get a search warrant for something I told them they can’t search.
Truth: Police don’t have to get a search warrant for your vehicle following a traffic stop. Ever.
A police officer must show probable cause before a magistrate will sign a search warrant. But, if an officer has probable cause to believe that there are drugs or other evidence of crime in your car, they don’t need a search warrant.
This is called “the automobile exception” to the search warrant requirement. The reasoning is that automobiles are mobile, and there is a high danger of destruction of evidence when the evidence is found in an automobile or other motor vehicle. This doesn’t mean that they can search your car without probable cause. It means that they don’t have to get a search warrant and a court will review their probable cause determination later.
Myth #4: I was arrested after a roadside stop, but that doesn’t mean police officers can search my vehicle.
Truth: Police officers can usually search your vehicle if you are arrested.
If an officer arrests you during a traffic stop, he or she may also be able to search your vehicle under the “search incident to arrest” exception to the warrant requirement. According to this exception, the officer may search any area of the vehicle where evidence relevant to the arrest could be found. This could mean the glove box, in and under the seats, in the center console, in the trunk, and inside any opened or closed containers located in those areas.
On the other hand, after the U.S. Supreme Court’s decision in Arizona v. Gant, if your car is legally parked and there is no likelihood that relevant evidence would be found in it, they cannot search your vehicle incident to arrest. For example, if the car is parked in your driveway and the officer arrests you for driving under suspension, they cannot then search your vehicle for narcotics or other contraband. It is not likely that evidence of driving under suspension will be found in the vehicle and the additional search is unnecessary.
If you’re arrested after a traffic stop and your car is left on the side of the road, however, the police officer will have your car towed to an impound lot. When a vehicle has been impounded, the police can then search every area within your car under the inventory exception to the warrant requirement. The car would be searched anyway to inventory its contents. Because the search is inevitable, the police can go ahead and do it on the side of the road and anything they find can be used against you.
Myth #5: If I don’t give consent for a police officer to search my car, the officer can’t search it without probable cause.
Truth: An officer can search certain areas of your vehicle without consent and without probable cause if they suspect there is a weapon in the vehicle.
The U.S. Supreme Court held in Terry v. Ohio that an officer can “pat down” a person on the street if the officer suspects that the person has a weapon that could be used against the officer. If the officer has an “articulable reasonable suspicion” that a person is armed and dangerous, they may also:
- Ask the driver and passengers to step out of a vehicle. Pennsylvania v. Mimms.
- Pat down, or conduct a “Terry frisk,” of the driver or passengers for weapons. Arizona v. Johnson.
- Conduct a “Terry frisk” of the passenger compartment of the vehicle – any place where a weapon could be concealed and the driver or a passenger could retrieve it. Michigan v. Long.
A “reasonable suspicion” is a lower standard than “probable cause,” but the “reasonable suspicion” must be articulable. This means that an officer must give a reason that they can articulate – the officer cannot just say “I had a hunch,” or “He just looked suspicious to me.”
Myth #6: If I’m a passenger in a car that gets stopped by police, but I don’t own the car, the police can’t search my belongings.
Truth: If you’re a passenger in a car that gets stopped, the police CAN search your belongings.
Once the police have probable cause to search a car, it doesn’t matter whether the objects they search belong to the driver or the passengers. The officers can search any object that is capable of concealing whatever they are searching for.
If the search results in the discovery of incriminating evidence, the police can arrest the driver and the passengers. It is important to note that, even though you do not own the vehicle that was searched, you still have standing to challenge the constitutionality of any evidence that was found.
Myth #7: If an officer has probable cause to search my car, he still can’t search my person.
Truth: If the officer has probable cause to search, he can search your car and your person.
This doesn’t mean you should consent because the search is inevitable. In many cases, consent to search will make it difficult to later exclude any evidence that is found. There are exceptions such as when the consent was asked for and received during an illegal detention.
For example, if the officer does not have probable cause to search but holds you on the side of the road for an unreasonable amount of time, any consent given may be invalid. But remember that the police officer does not even need probable cause if he can articulate a reasonable suspicion that you are armed and dangerous…
Myth #8: If I get pulled over, I don’t have to do anything the officer asks or answer any questions.
Truth: If you get pulled over in South Carolina, you have the right to remain silent, but you must follow reasonable and lawful instructions from the officer.
You may assert your right to remain silent, but it is in your best interest to be polite and courteous about it. Remember, the officer is just doing his or her job.
When the officer asks you to hand over your license, registration, and proof of insurance, this is a reasonable and lawful request that you must comply with. If the officer asks you to roll your window down or step out of the vehicle, you must comply with these requests as well. If the officer asks you any other questions that you are not comfortable answering, you are within your rights to say, “I am not going to answer any questions and I would appreciate it if you respect my privacy. Am I free to go?”
Myth #9: Police officers need probable cause to search my car. Period.
Truth: Police officers sometimes only need reasonable suspicion to search your car.
Police officers need probable cause (sufficient facts and circumstances) to conduct a full search of your person or your vehicle. They also need probable cause to make an arrest. But, if they have a reasonable and articulable suspicion that you are armed and dangerous, they can pat you down to search for weapons or they can search the passenger compartment of your vehicle for weapons.
If, during the vehicle search, the officer finds other contraband in “plain sight,” they can seize it and charge you with it. Similarly, if an officer feels something in your pocket that is readily identifiable as contraband, they can seize it and charge you with it. The law calls this the “plain sight doctrine” and the “plain feel doctrine.”
Myth #10: If the police find evidence of a crime in my vehicle, I might as well confess.
Truth: You absolutely do not have to make statements to the police even if they find evidence of a crime in your vehicle during a search.
Regardless of what the police find in your vehicle, you do not have to say anything. If police find drugs or other evidence of a crime in your vehicle, they are most likely taking you to jail and you cannot talk your way out of it. This may be the most important time for you to exercise your right to remain silent. Say nothing except you do not wish to answer questions and you want an attorney.
Even if evidence of criminal activity has been found in your vehicle, this does not mean you will be found guilty of any crime. Your criminal defense attorney will study the evidence in your case and look for ways to exclude any evidence that is found. If you are talking to the officer and answering questions, it makes your attorney’s job much more difficult.
The Bottom Line
You should never consent to any search of your person or vehicle, even if you think that you have nothing to hide. When you refuse consent, the officer may still search you or your car. If the officer finds contraband and you are arrested, you are in a much better position because you did not consent to the search.
Fourth Amendment law – exclusion of evidence that the police found by violating your rights – is one of the most complex areas of criminal law. It is critical that you get an experienced criminal defense lawyer on your case as soon as possible so that they can obtain the evidence, review the case, and put together your defense.
If you would like to discuss your case contact Coastal Law today at (843) 488-5000, or complete our online form.
